[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15511 July 26, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00036-CR-WLS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee
Cross-Appellant,
versus
HENRY MATHIS,
Defendant-Appellant
Cross-Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Georgia
_________________________
(July 26, 2006)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Henry Mathis, an elected commissioner of the City of Albany,
Georgia, appeals his 36-month sentence for three convictions of extortion by a
public official, in violation of 18 U.S.C. § 1951; and one count of misleading
statements, in violation of 18 U.S.C. § 1512(b)(3). The government cross-appeals
arguing that Mathis’s sentence is unreasonable in violation of United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), because it is far
below the recommended sentencing guideline range.
On appeal, Mathis first argues that the evidence failed to establish the
required nexus to interstate commerce. Second, Mathis argues that the evidence
did not establish extortion under the threat of economic loss. Third, Mathis argues
that the government could not prosecute him for making misleading statements
after law enforcement had completed their investigation by invoking a statement
from him in which he denied information that authorities already had. Fourth,
Mathis challenges the district court’s application of the guideline governing
extortion by force or threat of injury or serious damage under U.S.S.G. § 2B3.2,
rather than the guidelines for blackmail and similar forms of extortion under
U.S.S.G. § 2B3.3. Fifth, Mathis argues that the district court erred by applying the
obstruction of justice enhancement under U.S.S.G. § 3C1.1. Finally, Mathis argues
2
that the district court erred by enhancing the offense level for abuse of position of
trust under U.S.S.G. § 3B1.3.
The government cross appeals arguing that the district court erred in
sentencing Mathis to only 36 months in prison where the sentencing guideline
range was 57 to 71 months, and the court’s only stated reason for imposing a
sentence below the recommended guideline range would have justified a sentence
of 51 to 63 months. We address these seven issues in turn.
I.
Generally, we review de novo whether the record contains sufficient
evidence to support a jury’s guilty verdict, and view the evidence in the light most
favorable to the government, with all reasonable inferences and credibility choices
made in the government’s favor. United States v. Calderon, 127 F.3d 1314, 1324
(11th Cir. 1997). Where, as here, a defendant does not move the district court for a
judgment of acquittal at the close of the evidence, within seven days after a guilty
verdict, or after the jury is discharged, however, we may reverse the conviction
only to prevent a manifest miscarriage of justice. See Fed. R. Crim. P. 29(a), and
(c); United States v. Hamblin, 911 F.2d 551, 556-57 (11th Cir. 1990). This
standard requires us to find that “the evidence on a key element of the offense is so
tenuous that a conviction would be shocking.” Id. at 557 n.2 (citation omitted).
3
The Hobbs Act applies to those who “in any way or degree . . . affects
commerce or the movement of any article or commodity in commerce, by . . .
extortion or attempts . . . to do [so] . . . . ” 18 U.S.C. § 1951(a). In order to sustain
jurisdiction under the Hobbs Act, the government need only show that the offense
had at least a minimal impact, so long as it is actual, on interstate commerce.
United States v. Guerra, 164 F.3d 1358, 1359-60 (11th Cir. 1999); United States v.
Diaz, 248 F.3d 1065, 1088 (11th Cir. 2001). We have “continued to stress a
fact-specific inquiry into the . . . likely extent of any impact on interstate
commerce.” United States v. Verbitskaya, 406 F.3d 1324, 1332 n.10 (11th Cir.
2005). Furthermore, “it is of no moment to the analysis whether the effect is
characterized as ‘direct’ or ‘indirect’-if the defendant’s conduct had a minimal
effect on commerce, nothing more is required.” United States v. Gray, 260 F.3d
1267, 1276 (11th Cir. 2001) (citation omitted). “Where a defendant is charged
with attempt . . . to violate the Hobbs Act, the interstate nexus may be
demonstrated by evidence of potential impact on interstate commerce or by
evidence of actual, de minimis impact.” United States v. Le, 256 F.3d 1229, 1232
(11th Cir. 2001) (internal quotations and citations omitted).
Considering each of the three episodes of extortion separately, we find that
the record here demonstrates that the government’s proof satisfied the interstate
4
nexus jurisdictional requirement under the “depletion of assets” theory. Under that
theory, “commerce is affected when an enterprise, which either is actively engaged
in interstate commerce or customarily purchases items in interstate commerce, has
its assets depleted through extortion, thereby curtailing the victim’s potential as a
purchaser of such goods.” United States v. Jackson, 748 F.2d 1535, 1537 (11th
Cir. 1984).
With regard to McDonald, a victim of Mathis’s extortion, the testimony at
trial showed that McDonald was treasurer of a motorcycle club (“Club”); he spent
between $100 and $200 per week buying beer at a local package store; the beer
was sold at the Club’s lounge (“lounge”); and he was reimbursed for those
expenses by the Club’s secretary. McDonald testified that had he not given his
money to Mathis, that money would have been used to buy more beer for the
lounge. The record shows that the beer that McDonald regularly purchased had
been transported through interstate commerce. Therefore, Mathis’s extortion of
McDonald depleted McDonald’s assets, burdened him with an additional cost of
supplying the lounge with beer, and had at least a minimal impact on interstate
commerce. See Gray, 260 F.3d 1276.
The record also shows that Mathis’s extortion of Wilson had at least a
minimal impact on interstate commerce. Testimony at trial showed that Southwest
5
Carting (“Southwest”), Wilson’s garbage collection enterprise, spent
approximately $2,500 per month on fuel that was transported from out of state and
sold in Albany. In addition, Wilson testified that had she not given Mathis the
money she gave him, that money would have gone into Southwest. Thus, like
Jackson, the record here shows that Mathis’s extortion depleted Southwest’s assets
and burdened Wilson with an additional cost of doing business.
Last, because Hadley, another victim of Mathis’s extortion, was the
operations manager of Southwest and Mathis approached Hadley during
Southwest’s subcontract to provide garbage collection services to the City, a
reasonable jury could have concluded that Mathis targeted Hadley in his capacity
and relationship with Southwest. Furthermore, a reasonable jury could have
concluded that Mathis’s attempted extortionist conduct could have had at least a
minimal potential effect on interstate commerce because any money Hadley would
have given to Mathis would have come from an enterprise engaged in interstate
commerce. See Le, 256 F.3d at 1232.
In sum, we conclude that because a reasonable jury could have found that
the evidence established the jurisdictional requirement of at least a minimal effect
on interstate commerce for each of the challenged counts of extortion, Mathis has
6
failed to show that the evidence was so tenuous that his conviction demonstrated a
manifest miscarriage of justice.
II.
As noted above, the Hobbs Act prohibits interference with interstate
commerce by means of extortion. 18 U.S.C. § 1951. The term “extortion” is
defined as “the obtaining of property from another, with his consent, induced by
wrongful use of actual or threatened force, violence, or fear . . .” 18 U.S.C.
§ 1951(b)(2). The anticipation of economic loss constitutes “fear” within the
meaning of the Hobbs Act. United States v. Duhon 565 F.2d 345, 351 (5th Cir.
1978).1 Thus, an offense occurs when a defendant intends to exploit a victim’s
reasonable fear of economic loss. United States v. Flynt, 15 F.3d 1002, 1007 (11th
Cir. 1994).
“The fear experienced by the victim does not have to be the consequence of
a direct threat.” United States v. Haimowitz, 725 F.2d 1561, 1572 (11th Cir. 1984).
Rather, “an actionable claim under the Hobbs Act can be made out even if the
threats used to extort are merely subtle and indirect, so long as the government can
show circumstances surrounding the alleged extortionate conduct that rendered the
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all of the decisions of the former Fifth Circuit handed down prior to October 1,
1981.
7
victim’s fear of threatened loss reasonable.” United States v. Blanton, 793 F.2d
1553, 1558 (11th Cir. 1986) (internal quotations and citation omitted). “In proving
the crime of extortion, where intent often must be inferred from ambiguous
statements and situations, the jury's verdict must be accorded substantial weight.”
Duhon, 565 F.2d at 352.
In the case of a charge of attempted extortion, the “[p]otential impact is
measured at the time of the attempt, i.e., when the extortion demand is made, based
on the assumed success of the intended scheme.” United States v. Farrell, 877
F.2d 870, 875 (11th Cir. 1989) (citation omitted).
Having reviewed the record in accordance with the pertinent de novo
standard of review, we conclude that the evidence was sufficient to support
Mathis’s convictions. With respect to McDonald, the record shows that in
response to Mathis’s conduct, McDonald gave him money to which he had no
lawful claim out of McDonald’s reasonable fear of economic loss. See Blanton,
793 F.2d at 1558. Mathis was an elected official involved in the liquor licensing
process who personally told members of the Club that he could do something about
the initial refusal to grant a license, and he instructed the Club to re-apply for the
license, which resulted in its successful issuance. After the license was granted
Mathis personally visited McDonald and asked him for a fee in return for his help,
8
but to which he had no lawful claim, and when McDonald refused, Mathis
immediately warned him that the lounge was in violation of an existing city
ordinance. At trial, McDonald testified that, “if we didn’t pay [Mathis] the rest of
that money, that he might do something to cause us to lose our [liquor] license.”
These facts show that a reasonable jury could find that McDonald had a reasonable
fear of economic loss, and that Mathis engaged in fear inducing conduct to extort
money from McDonald to which he had no lawful claim.
The record also shows that Wilson reasonably feared economic loss. Wilson
believed that Mathis was “a political figure with power.” When Wilson learned
that Mathis had asked Hadley for money, Wilson gave Mathis money because she
believed that if she refused he would do something to adversely affect Southwest’s
contracts. The fact that Mathis did not make a direct threat against Wilson is not
determinative here because Mathis targeted her business. See Haimowitz, 725 F.2d
at 1572. Thus, because Mathis was a Commissioner who was responsible, at least
in part, for her company’s success, it was reasonable for Wilson to believe that she
would have to comply with his demands for money if she did not want Mathis to
take some adverse action against Southwest.
Last, even though Hadley admitted that Mathis never threatened him, a
reasonable jury could conclude that based on the assumed success of the intended
9
scheme, Mathis attempted to extort money from Hadley in exchange for his
assistance in securing the garbage collection subcontracts for Southwest. The
attempted extortion was complete when Mathis, after inquiring about the business,
asked Hadley for a cash contribution, which he declined to do because the request
for cash raised a red flag. In sum, Mathis has failed to show that his convictions
were a manifest miscarriage of justice.
III.
Generally, we review a district court’s statutory interpretation and
application de novo, but where, as here, an issue is raised for the first time on
appeal, we will reverse for plain error only. United States v. Olano, 507 U.S. 725,
113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). To satisfy the plain-error standard, we
must find that: (1) the district court committed error; (2) the error was plain or
obvious; and (3) the error affected substantial rights in that the error was
prejudicial and not harmless. If these criteria are met, we may correct the plain
error if it “seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 736, 113 S. Ct. at 1779.
Federal law provides that
(b) Whoever knowingly uses intimidation, threatens, or . . . engages
in misleading conduct toward another person, with intent to . . .
10
(3) hinder, delay, or prevent the communication to a law
enforcement officer or judge of the United States of information
relating to the commission or possible commission of a Federal
offense . . . ;
shall be fined . . . or imprisoned not more than ten years, or
both.
18 U.S.C. § 1512(b)(3). Importantly, the jurisdictional basis under § 1512(b)(3) is
not limited to “official proceedings.” United States v. Veal, 153 F.3d 1233, 1251
(11th Cir. 1998). In Veal, we held that the misleading conduct consisted of the
defendant’s false statements about their respective participation in the actual
offense. Id. at 1246. Furthermore, there is no requirement that the defendant
intend to mislead federal authorities; rather, all that is required is the possibility or
likelihood that the defendant’s false and misleading information would be
transferred to federal authorities irrespective of the governmental authority
represented by the initial investigators. Id. at 1251-52.
We conclude from the record that Mathis fails to show that reversible error
occurred when he was prosecuted and convicted of violating § 1512(b)(3).
Testimonial and other evidence at trial showed that Mathis did take money from
McDonald, and that he later told state law enforcement agents that he did not take
any money for any purpose from McDonald. Thus, the record demonstrates that
11
Mathis intended to mislead authorities, and therefore, no error occurred as a result
of his conviction.
IV.
Because Mathis objected to the application of the guideline governing
extortion by force or threat of injury or serious damage under U.S.S.G. § 2B3.2 in
the district court, we review his claim de novo. United States v. Paz, 405 F.3d 946,
948 (11th Cir. 2005).
“[T]o correctly determine the applicable offense guideline, a sentencing
court must identify the offense guideline section in Chapter Two (Offense
Conduct) most applicable to the offense of conviction.” United States v. Saavedra,
148 F.3d 1311, 1314 (11th Cir. 1998) (citation omitted). The guidelines direct that
the applicable guidelines for convictions under 18 U.S.C. § 1951 are, among
others not relevant here, sections 2B3.2 (extortion by force or threat of injury or
serious damage), and 2B3.3 (blackmail and similar forms of extortion). U.S.S.G. §
1B1.2, and App. A.
In the case of a particular statute that proscribes a variety of conduct
that might constitute the subject of different offense guidelines, the
Statutory Index may specify more than one offense guideline for that
particular statute, and the court will determine which of the referenced
guideline sections is most appropriate for the offense conduct charged
in the count of which the defendant was convicted . . . .
U.S.S.G. § 1B1.2, cmt. (n.1).
12
The commentary to the guideline for extortion by force or threat of injury or
serious damage notes that the guideline applies if there was any threat, express or
implied that reasonably could be interpreted as one to drive an enterprise out of
business. U.S.S.G. § 2B3.2, cmt. (n.2). The commentary to the guideline for
blackmail and similar forms of extortion explains that blackmail is “a threat to
disclose a violation of United States law unless money or some other item of value
is given.” U.S.S.G. § 2B3.3, cmt. (n.1). The Seventh Circuit addressed this
provision in United States v. Lallemand, 989 F.2d 936, 939 (7th Cir. 1993), noting
that “the guideline applicable to blackmail is narrow.” Furthermore, the court
stated that the guideline “is limited to blackmail itself, whether charged under the
blackmail statute or under an extortion statute, and to other forms of extortion that
do not involve a threat of force or the abuse of an official position . . . . ” Id. Thus,
the blackmail guideline does not cover all forms of extortion. See id.
With respect to extortion of McDonald, we conclude that the district court
properly applied the guideline governing extortion by force or threat of injury or
serious damage because the guideline commentary specifically identifies the
conduct of conviction here, that Mathis impliedly threatened McDonald such that
he reasonably interpreted the threat to drive the lounge out of business. See
U.S.S.G. § 2B3.2, cmt. (n.2). McDonald bought and sold beer for the lounge and
13
he was an officer of the Club. Importantly, there is no restriction that § 2B3.2
apply only in circumstances involving actual physical force. Furthermore, there is
no requirement that offensive conduct completely drive an enterprise out of
business, but only that there was some injury, which in this case was to deprive the
Club of its license. Moreover, the offense guideline governing blackmail did not
apply in this case because the ordinance restricting the location of establishments
serving liquor was public and on the record, and therefore, there was no secret to
be revealed. Thus, here, we conclude that the district court applied the appropriate
offense guideline to Mathis’s extortion convictions.
V.
Because the operative facts were not in dispute, the district court was
confronted with the necessity of deciding, as a matter of law, whether the
undisputed facts triggered the enhancement for obstruction of justice, a
determination we review de novo. United States v. Banks, 347 F.3d 1266, 1269
(11th Cir. 2003). The Government bears the burden of establishing by a
preponderance of the evidence the facts necessary to support a sentencing
enhancement. United States v. Askew, 193 F.3d 1181, 1183 (11th Cir. 1999).
The guideline for the obstruction of justice enhancement provides that
[i]f (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of
14
the investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) defendant’s
offense of conviction and any relevant conduct; or (ii) a closely
related offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1. The commentary to this guideline provides that the two-level
enhancement should apply where the defendant provides a materially false
statement to a law enforcement officer that significantly obstructed or impeded the
official investigation or prosecution of the subject offense. U.S.S.G. § 3C1.1, cmt.
(n.4(g)). Most importantly, however, the commentary provides that if the
defendant is convicted both of an obstruction offense and an underlying offense,
the count for the obstruction offense will be grouped with the count for the
underlying offense under U.S.S.G. § 3D1.2(c). U.S.S.G. § 3C1.1, cmt. (n.8).
Under this scenario, as is the case here, the offense level for that group of closely
related counts will be the offense level for the underlying offense increased by the
two-level adjustment. Id. This adjustment applies to any other obstructive conduct
with respect to the official investigation, prosecution, or sentencing of the instant
offense where there is a separate count of conviction for such conduct. U.S.S.G.
§ 3C1.1, cmt. (n.4).
Although we have not done so before, here, we agree with other federal
appellate courts that have applied the obstruction of justice enhancement where the
defendant was convicted on multiple charges, including on a separate charge of
15
obstructive conduct. See e.g., United States v. Brooks, 111 F.3d 365, 373 (4th Cir.
1997); United States v. Crisci, 273 F.3d 235, 240 (2d Cir. 2001); United States v.
Edwards, 303 F.3d 606, 646 (5th Cir. 2002); United States v. Frank, 354 F.3d 910,
924 (8th Cir. 2004).
At the outset, we hold that the conclusion of an investigation, per se, is not
enough to avoid an enhancement for obstruction of justice because the
enhancement is applicable during the prosecution and sentencing phases as well.
See U.S.S.G. § 3C1.1.
Next, we conclude that the district court properly applied the two-level
enhancement where in addition to the underlying offense of extortion, Mathis was
convicted of a separate charge of making false statements. See U.S.S.G. § 3C1.1,
cmt. (n.4, 5, 8). In this case, Mathis’s separate count of conviction for making
misleading statements to investigating authorities investigating the instant offense
compelled the district court to apply section 3C1.1. Moreover, as discussed in
section III, supra, the misleading statements conviction is supported by the
evidence. Accordingly, we affirm the district court’s application of the obstruction
of justice enhancement.
16
VI.
Because Mathis raises an objection to the application of the abuse of
position of trust enhancement for the first time on appeal, we review this issue for
plain error. United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785,
631,152 L. Ed. 2d 860 (2002). To establish plain error, the defendant must show
“(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. “If all three
conditions are met, an appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. We have held, however, that “an
error cannot meet the ‘plain’ requirement of the plain error rule unless it is ‘clear
under current law.’ . . . [W]here neither the Supreme Court nor [the Eleventh
Circuit] has ever resolved an issue, and other circuits are split on it, there can be no
plain error in regard to that issue.” United States v. Aguillard, 217 F.3d 1319,
1321 (11th Cir. 2000) (citations omitted).
Section 3B1.3 provides a two-level enhancement for abuse of trust “[i]f the
defendant abused a position of public . . . trust, . . . in a manner that significantly
facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3. “For
the adjustment to apply, the government must establish both elements: (1) that the
defendant held a place of public . . . trust; and (2) that the defendant abused that
17
position in a way that significantly facilitated the commission or concealment of
the offense.” United States v. Ward, 222 F.3d 909, 911 (11th Cir. 2000). The
commentary to section 3B1.3 provides that:
‘[p]ublic . . . trust’ refers to a position of public . . . trust
characterized by professional or managerial discretion (i.e.,
substantial discretionary judgment that is ordinarily given
considerable deference). Persons holding such positions
ordinarily are subject to significantly less supervision than
employees whose responsibilities are primarily
non-discretionary in nature. For this enhancement to apply, the
position of public . . . trust must have contributed in some
significant way to facilitating the commission . . . of the offense
....
U.S.S.G. § 3B1.3, cmt. (n.1).
In United States v. Shenberg, 89 F.3d 1461, 1477 (11th Cir. 1996), an
elected official of a county’s judicial system was convicted of, among other things,
extortion, and we affirmed the application of the abuse of public trust enhancement
where the district court considered the defendant’s conduct with respect to his
position as an elected official. See e.g., United States v. Brave Thunder, 445 F.3d
1062, 1065 (8th Cir. 2006) (persuasive authority) (holding that the district court
properly imposed two-level enhancement for abuse of public trust where elected
members of governmental commissions were convicted of, among other things,
making false statements to authorities); United States v. Blandford, 33 F.3d 685,
711 (6th Cir. 1994) (persuasive authority) (affirming a two-level enhancement for
18
abuse of public trust by an elected member of state general assembly convicted of
extortion).
Here, we conclude from the record that the district court did not commit
error by enhancing Mathis’s sentence by two levels for abuse of position of public
trust because he was an elected official of a city commission. See Shenberg, 89
F.3d at 1477. Because Mathis was elected to his position of city commissioner, he
was someone in the public trust. In addition, Mathis exercised managerial duties
for the city, for example, he took part in arranging for garbage disposal and
granting business licenses. As discussed at length above, Mathis’s abuse of his
position of public trust was the basis for the commission of the instant offenses. In
sum, because the district court properly applied the abuse of trust enhancement
pursuant to U.S.S.G. § 3B1.3, there was no error, and because there are no binding
cases in support of Mathis’s position, even if there was error at sentencing, it was
not “plain.” See Aguillard, 217 F.3d at 1321.
VII.
The sentence finally imposed on a defendant under an advisory guidelines
system is reviewed for reasonableness. United States v. Crawford, 407 F.3d 1174,
1178 (11th Cir. 2005). Following the Booker decision, we stated that the district
court must first correctly calculate the defendant’s guideline range, then, using the
19
18 U.S.C. § 3553(a) sentencing factors, the court can impose a more severe or
more lenient sentence as long as it is reasonable. Crawford, 407 F.3d at 1179.
Our review for reasonableness is deferential. United States v. Talley, 431 F.3d
784, 788 (11th Cir. 2005). “[T]he party who challenges the sentence bears the
burden of establishing that the sentence is unreasonable in the light of both th[e]
record and the factors in section 3553(a).” Id.
The specific factors to be taken into consideration under a reasonableness
review are those found in 18 U.S.C. § 3553(a). See Booker, 543 U.S. at 261, 125
S. Ct. at 765. The factors to be considered are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed
--(A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense; (B) to afford
adequate deterrence to criminal conduct; (C) to protect the public
from further crimes of the defendant; and (D) to provide the defendant
with needed [treatment]; (3) the kinds of sentences available; (4) the
kinds of sentence and the sentencing range. . .; (5) any pertinent
policy statement. . .; (6) the need to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct; and (7) the need to provide restitution
to any victims of the offense.
18 U.S.C. § 3553(a).
Under 18 U.S.C. § 3553(c)(2), a district court must state sufficiently specific
reasons for its departure from the applicable guidelines range so that an appellate
court can engage in meaningful review. United States v. Suarez, 939 F.2d 929, 933
20
(11th Cir. 1991). “When evaluating a district court’s reasons for imposing a
particular sentence, [we] may consider the entire sentencing hearing and need not
rely upon the district court’s summary statement made at the closing of the
sentencing hearing.” Id. at 934. Nothing in Booker altered the § 3553(c)(2)
requirement that a district court state reasons for its departure from the applicable
guidelines range. United States v. Montgomery, 165 Fed. Appx. 840, 842 (11th
Cir. 2006) (unpublished).
We have held, however, that “nothing in Booker or elsewhere requires the
district court to state on the record that it has explicitly considered each of the
§ 3553(a) factors or to discuss each of the § 3553(a) factors.” United States v.
Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (sentence imposed within guideline
range). Accordingly, we do not review for the specific enumeration of the
§ 3553(a) factors; rather, we use those factors to determine if a sentence is
reasonable. Id. Furthermore, we have held that a district court’s statement that it
had considered the § 3553(a) factors alone is sufficient in post-Booker sentences to
indicate that it considered the factors, and concluded that the defendant’s sentence
was reasonable because the district court accurately calculated the guideline range
and the defendant’s sentence at the low end of the range reflected the court’s
consideration of his evidence in mitigation. Scott, 426 F.3d at 1330.
21
In United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005), we
rejected a government challenge and affirmed a sentence one-tenth the length of
the twenty-year statutory maximum sentence for the committed offense because, in
light of the factors outlined in § 3553(a), the sentence imposed was reasonable.
Notably, Winingear defrauded 21 people of a total of $19,600, had multiple
previous convictions, committed the instant crime while still under sentence for a
previous crime, violated his bond, and threatened to murder arresting officers as he
fled from them. Id. at 1246.
In United States v. Williams, 435 F.3d 1350, 1354 (11th Cir. 2006), we
rejected a government challenge and upheld the defendant’s 90 month sentence,
which was less than half the lowest sentence within the applicable guideline range
of 188 to 235 months imprisonment, as reasonable. Specifically, we noted that the
district court weighed the factors in § 3553 and took into account the defendant’s
individual history and the nature of the charge against him. Id. at 1355.
In United States v. McVay, 447 F.3d 1348 (11th Cir. 2006), however, we
said that where a district court imposes a sentence “falling far outside of the
Guidelines range, based on the § 3553(a) factors, an extraordinary reduction must
be supported by extraordinary circumstances.” Id. at 1357 (internal quotations
omitted). In McVay, we remanded for re-sentencing the defendant’s sentence
22
which departed by 21-levels from a guidelines sentencing range of 87 to 108
months’ imprisonment to a sentencing range of 0 to 6 months’ imprisonment. Id.
at 1349.
In this case, we conclude that Mathis’s 36-month sentence was reasonable.
First, the district court followed the proper procedure in determining the sentence
because it: (1) correctly calculated the advisory guidelines range; and (2) indicated
that it had considered the factors contained in 18 U.S.C. § 3553(a). See Talley, 431
F.3d at 786. Second, the district court complied with the requirement of 18 U.S.C.
§ 3553(c)(2), even though it was not required to discuss each of the § 3553(a)
factors. See Scott, 426 F.3d at 1329. The district court found that the guideline
range was “excessively punitive,” based on Mathis’s commitment to public
service, the monetary amount involved, and that this was his only criminal
conviction. Finally, the district court noted that it had imposed the sentence
because the extortion convictions for counts two and three were so closely related
as they involved the same business. Thus, we conclude that the district court
correctly calculated the guidelines range and considered the factors of § 3553(a).
For the above-stated reasons, we affirm Mathis’s convictions and sentences.
AFFIRMED.
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