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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10480
Non-Argument Calendar
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D.C. Docket No. 2:18-cr-00159-TPB-NPM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AUGUSTIN DALUSMA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 30, 2021)
Before BRANCH, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
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Augustin Dalusma appeals his total 97-month sentence of imprisonment
after a jury convicted him of 12 counts of making false claims to the Internal
Revenue Service (“IRS”) and 3 counts of filing fraudulent tax returns. He argues
that his sentence was substantively unreasonable because the district court
improperly weighed the 18 U.S.C. § 3553(a) sentencing factors and failed to
consider his downward variance request. After review, we affirm.
I. Background
A jury convicted Dalusma of all charges in a 15-count indictment for
making false claims to the IRS and filing fraudulent tax returns. 1 Dalusma’s
guidelines range was 97 to 121 months’ imprisonment. Each of the false claims
counts carried a maximum term of five years’ imprisonment and each of the
fraudulent tax return counts carried a maximum term of three years’ imprisonment.
Prior to sentencing, Dalusma filed a memorandum requesting a downward
variance sentence below the applicable guidelines range.2 He asserted that he was
58 years old, did not have any prior contact with the criminal justice system, and
had strong familial and community relationships, which were all indicators that his
likelihood of recidivism was low and that he was not a danger to the public. He
1
Between 2012 and 2015, Dalusma engaged in an income tax return scheme for which
the IRS paid out over $2 million. And between 2013 and 2015, Dalusma filed personal tax
returns that did not reflect his accurate income and evaded over $100,000 in taxes.
2
Dalusma’s memorandum also raised various objections to the guidelines calculation,
which the district court overruled at sentencing.
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further argued that the collateral consequences of his sentence at his age would
also serve as a long-lasting punishment because his imprisonment would have
permanent political, economical, and social consequences.
At the sentencing hearing, the government argued that any sentence within
the guidelines range would be appropriate, and it deferred to the court’s judgment
as to the appropriate specific sentence within the applicable range. It also
requested that the court impose concurrent three-year terms of supervised release
for each of the false claims counts.
A member of the church where Dalusma served as a pastor, Dalusma’s
youngest son, and a fellow pastor spoke on Dalusma’s behalf. The member of the
church discussed Dalusma’s work as a pastor, describing his kindness, his
mentorship, and how he was a spiritual and community leader. Dalusma’s son
testified that his father was an involved and supportive father, who was a loved and
important member of their family, and that he was very missed. Lastly, the pastor
explained that Dalusma was a great father, husband, and church and community
leader.
Dalusma then addressed the court himself, emphasizing how grateful he was
for his family’s support during the trial and how important his family, his role as a
local pastor, and his community were to him. He explained that he started his tax
business to help his community, and that he made the mistake of not doing his due
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diligence to make sure that he was doing “everything the right way.” He expressed
a great deal of remorse and apologized to the IRS and the court, and he asked for
forgiveness. He also thanked the IRS, the court, the prosecutor, his attorney, and
all court employees for “the time you have taken during this judgment.”
Finally, Dalusma’s counsel reiterated the request for a downward variance,
emphasizing Dalusma’s age, lack of any prior criminal history, and low risk of
recidivism. He urged the court to “take stock of the better things about [Dalusma]
and about his life[] and adjust the sentence appropriately.”
The district court noted that “[t]his [was] one of the more difficult cases”
because there was no doubt that, “[w]ith the exception” of the underlying criminal
acts, Dalusma had “led an exemplary life” and was “a good person” who “did a
bad thing.” Nevertheless, the district court noted that by stating this crime was the
result of a “mistake” Dalusma had not accepted responsibility for his intentional
decisions “to do this over, and over, and over.” The district court then explained
that, after considering the guidelines and the § 3553(a) factors, a total sentence of
97 months’ imprisonment 3 was “sufficient but not greater than necessary to
comply with the statutory purpose of sentencing.” The district court noted that the
3
Specifically, the district court sentenced Dalusma to concurrent terms of 60 months’
imprisonment as to Counts 1 through 11, concurrent terms of 36 months’ imprisonment on
Counts 13 through 15, and a term of 37 months’ imprisonment as to Count 12, to run
consecutively with the other counts.
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sentence was at the low end of the guidelines range in recognition of Dalusma’s
lack of a criminal history, the fact that he was not a danger to society, and that he
had led an otherwise exemplary life. Dalusma timely appealed.
II. Discussion
Dalusma argues that his total 97-month sentence is substantively
unreasonable because the district court failed to consider his motion for a
downward variance and to consider adequately and properly weigh the § 3553(a)
factors.
“Generally, when a district court recognizes its authority to grant a variance,
we review for abuse of discretion its decision not to grant a downward variance.”
United States v. Cabezas-Montano, 949 F.3d 567, 610 (11th Cir. 2020). “The
district court has considerable discretion in deciding whether the § 3553(a) factors
justify a variance and the extent of such a variance.” Id. (alteration adopted)
(quotation omitted). And “[w]e give that decision due deference because the
district court has an institutional advantage in making sentencing determinations.”
Id. (quotation omitted).
Similarly, we review the reasonableness of a sentence under a deferential
abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). The
district court must issue a sentence that is “sufficient, but not greater than
necessary” to comply with the purposes of 18 U.S.C. § 3553(a)(2), which include
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the need for a sentence to reflect the seriousness of the offense, promote respect for
the law, provide just punishment, deter criminal conduct, and protect the public
from future criminal conduct. 18 U.S.C. § 3553(a). The court must also consider
the “nature and circumstances of the offense and the history and characteristics of
the defendant.” Id. § 3553(a)(1). “[T]he district court need only ‘acknowledge’
that it considered the § 3553(a) factors, and need not discuss each of these
factors . . . .” United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007)
(quotation and internal citation omitted). We examine whether a sentence is
substantively reasonable in light of the totality of the circumstances. Gall, 552
U.S. at 51.
A district court abuses its discretion when it (1) fails to consider relevant
factors that were due significant weight, (2) gives an improper or irrelevant factor
significant weight, or (3) “commits a clear error of judgment in considering the
proper factors.” United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir.
2015) (quotation omitted). Because such an abuse of discretion infrequently
occurs, “it is only the rare sentence that will be substantively unreasonable.” Id.
(quotation omitted). The burden rests on the party challenging the sentence to
show “that the sentence is unreasonable in light of the entire record, the § 3553(a)
factors, and the substantial deference afforded sentencing courts.” Id. We will
“vacate the sentence if, but only if, we ‘are left with the definite and firm
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conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.’” United States v. Irey, 612
F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quoting United States v. Pugh, 515
F.3d 1179, 1191 (11th Cir. 2008)).
Dalusma’s argument that the district court failed to consider his motion for a
downward variance is belied by the record. Although the district court did not
expressly overrule the motion for a downward variance, it implicitly overruled the
motion when it imposed a sentence at the bottom of the guidelines after hearing
Dalusma’s argument for a downward variance at sentencing. There is no
indication that the district court was unaware that it had the authority to impose a
downward variance, and its decision not to do so is entitled to deference. Cabezas-
Montano, 949 F.3d at 610.
Furthermore, Dalusma’s sentence is not substantively unreasonable. The
record confirms that the district court considered the § 3553(a) factors and even
commented on how difficult its decision was because of Dalusma’s otherwise
exemplary life. Although Dalusma quarrels with how the district court weighed
the factors, “[t]he weight to be accorded any given § 3553(a) factor is a matter
committed to the sound discretion of the district court.” United States v. Clay, 483
F.3d 739, 743 (11th Cir. 2007) (quotation omitted). The district court was entitled
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to give more weight to the nature and circumstances of the offense over Dalusma’s
mitigating circumstances, and he has not established that the district court erred in
its consideration of the relevant factors. See Rosales-Bruno, 789 F.3d at 1256;
Clay, 483 F.3d at 743. Moreover, Dalusma’s total 97-month sentence is within the
guidelines range which is an indicator of reasonableness. See United States v.
Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (“Although we do not automatically
presume a sentence within the guidelines range is reasonable, we ordinarily expect
[such a sentence] . . . to be reasonable.” (quotation omitted)). Accordingly, we
conclude Dalusma’s sentence is substantively reasonable and affirm.
AFFIRMED.
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