[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 19, 2007
No. 07-11848 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00091-CR-01-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
PATRICK ANDERSON,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 19, 2007)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
The government appeals Patrick Anderson’s sentence of probation for three
years, including home confinement for six months, imposed following a plea of
guilty to insider trading. See 15 U.S. C. §§ 78j(b),78ff(a) and 17 C.F.R. §
240.10b-5. The government argues that the sentence, which was below the
guideline sentencing range of 18 to 24 months of imprisonment, was unreasonable.
We vacate and remand for resentencing.
Anderson argues that the government did not preserve its objection to the
reasonableness of his sentence and we should review for plain error. We disagree.
The government presented its arguments both in its sentencing memorandum and
at the sentencing hearing.
Because the district court relied on “the objectives of sentencing” when it
imposed the below-guidelines sentence, and not on a mitigating factor inadequately
addressed in the sentencing guidelines, we will review the sentence as imposing a
downward variance. See United States v. Irizarry, 458 F.3d 1208, 1211–12 (11th
Cir. 2006), petition for cert. filed, (U.S. Oct. 26, 2006) (No. 06-7517).
We review a sentence for reasonableness. United States v. Talley, 431 F.3d
784, 785 (11th Cir. 2005). “Review for reasonableness is deferential.” Id. at 788.
“[T]he party who challenges the sentence bears the burden of establishing that the
sentence is unreasonable in the light of both [the] record and the factors in section
3553(a).” Id. “When we review a sentence for reasonableness, we do not, as the
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district court did, determine the exact sentence to be imposed.” Id. “We must
evaluate whether the sentence imposed by the district court fails to achieve the
purposes of sentencing as stated in section 3553(a).” Id. “[W]hen imposing a
sentence falling far outside of the Guidelines range, based on the § 3553(a) factors,
‘[a]n extraordinary reduction must be supported by extraordinary circumstances.’”
United States v. McVay, 447 F.3d 1348, 1357 (11th Cir. 2006) (quoting United
States v. Dalton, 404 F.3d 1029, 1033 (8th Cir. 2005)) (second alteration in
original).
The extraordinary reduction of Anderson’s sentence, from a Guidelines
range of 18 to 24 months of imprisonment to probation with home confinement for
six months, was unreasonable for two reasons. First, the district court relied upon
Anderson’s settlement of a civil action filed by the SEC, but there is nothing in the
record to suggest that the settlement was extraordinary. See United States v. Kim,
364 F.3d 1235 (11th Cir. 2004). In determining whether restitution is
extraordinary, we consider “a wide range of factors, such as the degree of
voluntariness, the efforts to which a defendant went to make restitution, the
percentage of funds restored, the timing of the restitution, and whether the
defendant’s motive demonstrates sincere remorse and acceptance of
responsibility.” Id. at 1244. Anderson admitted no wrongdoing in his settlement
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with the SEC and presented no evidence of exceptional efforts to make restitution.
Second, although the district court found that Anderson did not need to be deterred
from offending again, the district court failed to mention any exceptional
consideration regarding the need for general deterrence of white-collar offenders.
See United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006). The district
court found that Anderson had been “taught a lesson,” but that finding was not
based on any exceptional circumstance. In the absence of any extraordinary
circumstances, Anderson’s extraordinary variance was unreasonable. United
States v. Crisp, 454 F.3d 1285, 1288 (11th Cir. 2006).
Because the sentence imposed was unreasonable, we
VACATE AND REMAND FOR RESENTENCING.
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