United States v. David Murray

        USCA11 Case: 21-10717    Date Filed: 09/27/2021   Page: 1 of 4



                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 21-10717
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:20-cr-00060-AW-MAF-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

DAVID MURRAY,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                           (September 27, 2021)

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

     David Murray appeals his sentence of 42 months’ imprisonment—an
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upward variance from the guideline range of 30-37 months—for mail fraud and

international money laundering. Murray argues that the district court procedurally

erred in calculating the base offense level by including in the loss calculation

transactions that occurred prior to the criminal conduct for which he was charged.

       A district court’s factual findings are reviewed for clear error and its

application of the Guidelines to those facts are reviewed de novo. United States v.

Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir. 2006). “[O]nce the court of appeals has

decided that the district court misapplied the Guidelines, a remand is appropriate

unless the reviewing court concludes, on the record as a whole, that the error was

harmless, i.e., that the error did not affect the district court’s selection of the

sentence imposed.” Williams v. United States, 503 U.S. 193, 203-04 (1992); see

United States v. Barner, 572 F.3d 1239, 1247-48 (11th Cir. 2009) (holding that a

guidelines miscalculation is harmless, and therefore does not warrant reversal, if

the district court would have imposed the same sentence without the error). Where

a district court explicitly states that it would have sentenced the defendant the same

way without the error, we ask only whether the resulting sentence would have been

substantively reasonable had the guidelines issue been decided in the way that the

appellant argued. United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006).

       When reviewing for substantive reasonableness, we consider the totality of

the circumstances under a deferential abuse-of-discretion standard. Gall v. United


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States, 552 U.S. 38, 51 (2007). A district court abuses its discretion when it

(1) fails to consider relevant factors that were due significant weight, (2) gives

significant weight to an improper or irrelevant factor, or (3) commits a clear error

of judgment by balancing the proper factors unreasonably. United States v. Irey,

612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). The proper factors are set out

in 18 U.S.C. § 3553(a) and include the nature and circumstances of the offense, the

criminal history of the defendant, the seriousness of the crime, adequate

deterrence, and protection of the public. 18 U.S.C. § 3553(a). We have

emphasized that we must give due deference to the district court to consider and

weigh the proper sentencing factors. United States v. Shabazz, 887 F.3d 1204,

1224 (11th Cir. 2018).

      The district court also has wide discretion to decide whether the § 3553(a)

factors justify a variance. United States v. Rodriguez, 628 F.3d 1258, 1264 (11th

Cir. 2010), abrogated on other grounds by Van Buren v. United States, 141 S. Ct.

1648 (2021). The justification for a variance from the guideline range must be

“sufficiently compelling to support the degree of the variance.” Irey, 612 F.3d at

1186 (quotation marks omitted). “That an upward variance sentence is well below

the statutory maximum indicates that it is reasonable.” United States v. Riley, 995

F.3d 1272, 1278 (11th Cir. 2021) (quotation marks omitted).




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      Here, any error by the district court in calculating Murray’s base offense level

was harmless. First, the court stated that it would have imposed the same 42-month

sentence even if it had sustained Murray’s objection to the loss calculation because

a lesser sentence would have been insufficient considering the § 3553(a) factors.

Second, the 42-month sentence was substantively reasonable even under the lower

guideline range in light of the factors discussed by the court. Specifically, the court

discussed the predatory nature of the offense and Murray’s history of targeting

children and now targeting the elderly, § 3553(a)(1), the need for the sentence

imposed to reflect the seriousness of the crime, § 3553(a)(2)(A), the need to

adequately deter similar criminal conduct both by Murray and others in the

community, particularly after Murray was warned that the postal inspector knew he

was perpetrating a scam and continued to do it, § 3553(a)(2)(B), and the need to

protect the public from Murray, § 3553(a)(2)(C). These were proper factors for the

court to consider. Even if this Court would have weighed those factors differently,

it was not an abuse of discretion to impose a 12-month variance in light of the factors

discussed by the district court.

      Accordingly, we affirm.

      AFFIRMED.




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