[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 13, 2008
No. 07-11225 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00033-CR-5-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID E. MARTINELLI,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(February 13, 2008)
Before BARKETT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
This is David E. Martinelli’s second appeal from his 210-month sentence for
conspiracy to commit money laundering, a violation of 18 U.S.C. § 1956(a)(1) and
(h). We previously affirmed Martinelli’s conviction but vacated and remanded for
resentencing in light of United States v. Booker, 543 U.S. 220 (2005). See United
States v. Martinelli, 454 F.3d 1300 (11th Cir. 2006), cert. denied, 127 S.Ct. 1846
(2007). On remand, the district court again imposed a 210-month sentence. In this
appeal, Martinelli argues that the district court: (1) erred in calculating the “value
of the funds,” for purposes of U.S.S.G. § 2S1.1(b)(2), because it failed to
determine the actual amount that was laundered; (2) erred in its application of
U.S.S.G. § 3B1.1(a) because it considered all of the fraud-related acts, but there
was no evidence that Martinelli was the leader or organizer of an extensive money
laundering offense; and (3) imposed an unreasonable sentence and failed to
adequately consider his age. After thorough review of the record, we affirm.
Martinelli first argues that the district court erred in calculating the money
laundering amount for purposes of U.S.S.G. § 2S1.1. Martinelli contends that the
court “simply used all the money obtained by the company (that is, all the
fraudulently obtained money) and treated it as all laundered money.” According to
Martinelli, a considerable amount of the company’s receipts was used legitimately
by the company. Martinelli argues that his guidelines calculation would have been
lower if the court calculated the actual amount of money laundered, and it was
error for the court to use the fraud loss amount. According to Martinelli, although
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the current version of § 2S1.1 is inapplicable for ex post facto reasons, it defines
“laundered funds” as funds involved in the violation of 18 U.S.C. §§ 1956 or 1957.
In his reply brief, Martinelli contends that the government failed to meet its burden
of showing how much money was laundered, and there was no “relevant conduct”
to consider.
We review “the district court’s determination of the facts concerning the
amount of money involved in a money laundering scheme only for clear error.”
United States v. Paley, 442 F.3d 1273, 1276 (11th Cir. 2006) (interpreting the post-
2001 version of § 2S1.1). We review “the district court’s interpretation of the
sentencing guidelines de novo.” Id. “We will reverse the district court only if any
error was harmful.” United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
Pursuant to the 2000 version U.S.S.G. § 2S1.1,1 the defendant should be
assigned a base offense level of 23 if he was convicted under 18 U.S.C.
§ 1956(a)(1)(A), (a)(2)(A), or (a)(3)(A). U.S.S.G. § 2S1.1(a)(1) (2000). “Section
2S1.1(b) provides for increases in the base offense level for specific offense
characteristics, including the amount of money laundered.” United States v.
Martin, 320 F.3d 1223, 1225-26 (11th Cir. 2003) (interpreting the pre-2001 version
of § 2S1.1). Eight levels should be added where the “value of the funds” exceeds
1
The district court applied the November 1, 2000 edition of the Sentencing Guidelines,
and Martinelli concedes that the 2000 version of the Guidelines is applicable to his case.
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$6 million. U.S.S.G. § 2S1.1(b)(2)(I) (2000). “The commentary to § 2S1.1 states,
‘The amount of money involved is included as a factor because it is an indicator of
the magnitude of the criminal enterprise, and the extent to which the defendant
aided the enterprise.’” Martin, 320 F.3d at 1226.
In determining the “value of the funds,” “the district court is ‘required to
consider the total amount of funds that it believed was involved in the course of
criminal conduct.’” United States v. Barrios, 993 F.2d 1522, 1524 (11th Cir. 1993)
(citation omitted) (holding that legitimate interest earned could be used to calculate
the value of the funds for purposes of the pre-2001 version of § 2S1.1). “The
‘value of the funds’ involved in a money laundering offense is identified by
§ 2S1.1(b)(2) as a ‘Specific Offense Characteristic’ and, therefore, sentencing
under that section necessarily must take into account ‘all acts and omissions
committed . . . by the defendant . . . during the commission of the offense.’” Id.
(quoting U.S.S.G. § 1B1.3(a)(1)(A)). We have noted that “funds” “obviously
refer[s] to funds that are used by the defendant in an unlawful monetary
transaction.” Id. (citation omitted).
On November 1, 2001, § 2S1.1 was substantially amended. We discussed
the 2001 amendment in Martin, 320 F.3d at 1227 n.3:
The ‘value of the funds’ is no longer used as a specific offense
characteristic. Instead, the base offense level for money laundering is
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determined by reference to the underlying offense from which the
laundered funds were derived or by reference to the chart in § 2B1.1
corresponding to the ‘value of the laundered funds.’ U.S.S.G.
§ 2S1.1(a). Additionally, under the 2001 Guidelines, a defendant’s
base offense level is increased 2 levels for ‘sophisticated laundering,’
such as two or more levels (i.e. layering) of transactions. U.S.S.G.
§ 2S1.1(b)(3) & cmt. n. 5 (2001). The 1998 Guidelines do not contain
a similar provision regarding sophisticated laundering.
Id. The term “laundered funds” is defined in the 2001 amendment as “the
property, funds, or monetary instrument involved in the transaction, financial
transaction, monetary transaction, transportation, transfer, or transmission in
violation of 18 U.S.C. § 1956 or § 1957.” U.S.S.G. § 2S1.1 cmt. n.1.
As an initial matter, Martinelli does not challenge the district court’s finding
that $6.6 million was fraudulently obtained by the company, even though he
contested that figure at the first sentencing hearing. Martinelli also argued in the
district court that the “ceiling”amount the court could consider was the jury’s
determination of the $4.4 million forfeiture amount, but he fails to reassert that
argument on appeal. Therefore, he has abandoned those issues. United States v.
Levy, 416 F.3d 1273, 1275 (11th Cir. 2005) (“issues not raised in a party’s initial
brief are deemed abandoned and generally will not be considered by this Court”).
The district court did not clearly err in calculating the “value of the funds”
for purposes of § 2S1.1(b)(2). In its application of the 2000 version of the
Guidelines, the court was required to determine the “value of the funds,” not the
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amount of “laundered funds.” Thus, the record supports the court’s finding that the
value of the funds was $6.1 million because that amount took into account all acts
and omissions committed by Martinelli during the commission of the offense, and
the entire amount was undisputedly involved in the course of the criminal conduct.
Martinelli next argues that the district court erred by enhancing his sentence
under U.S.S.G. § 3B1.1(a) because it confused the underlying fraud offense with
the money laundering offense of which he was convicted. He contends that his
conduct in committing the underlying fraud offense was not “relevant conduct” in
the money laundering guideline. Martinelli does not challenge that he was leader
of the company or that he was responsible for his employees who fraudulently
obtained money for the company. He also does not dispute that the fraud offense
was “otherwise extensive.” However, according to Martinelli, there was no proof
that he managed anyone during the course of the money laundering offense, nor
was there evidence that the money laundering offense was “otherwise extensive.”
A district court’s decision to enhance a defendant’s offense level based on a
leadership role under U.S.S.G. § 3B1.1 is a finding of fact reviewed only for clear
error. United States v. Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002). “The
government bears the burden of proving by a preponderance of the evidence that
the defendant had an aggravating role in the offense.” United States v. Yeager,
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331 F.3d 1216, 1226 (11th Cir. 2003).
The Guidelines allow for a four-level increase to the defendant’s offense
level if he “was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). The
Guidelines further direct that “[t]he determination of a defendant’s role in the
offense is to be made on the basis of all conduct within the scope of § 1B1.3
(Relevant Conduct).” Id., introductory cmt. “Relevant Conduct” includes:
(A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant; and
(B) . . . all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity,
that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense.
U.S.S.G. § 1B1.3(a)(1). “[T]he focus is on the specific acts and omissions for
which the defendant is to be held accountable in determining the applicable
guideline range, rather than on whether the defendant is criminally liable for an
offense as a principal, accomplice, or conspirator.” Id., cmt. n.1.
“To qualify for an adjustment under this section, the defendant must have
been the organizer, leader, manager, or supervisor of one or more other
participants.” U.S.S.G. § 3B1.1 cmt. n.2. A “participant” is “a person who is
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criminally responsible for the commission of the offense, but need not have been
convicted.” Id., cmt. n.1. In deeming an organization to be “otherwise extensive,”
“all persons involved during the course of the entire offense are to be considered.
Thus, a fraud that involved only three participants but used the unknowing services
of many outsiders could be considered extensive.” Id., cmt. n.3.
The factors a court should consider in determining a leadership and
organizational role include:
[T]he exercise of decision making authority, the nature of
participation in the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or organizing the
offense, the nature and scope of the illegal activity, and the degree of
control and authority exercised over others. There can, of course, be
more than one person who qualifies as a leader or organizer of a
criminal association or conspiracy.
U.S.S.G. § 3B1.1 cmt. n.4.
Because Martinelli does not contest that he was the leader or organizer of the
extensive fraud offense, the only issue to decide is whether his conduct as a leader
or organizer in the fraud offense is “relevant conduct” in determining his role in the
offense for his money laundering conviction. The district court did not clearly err
in applying the U.S.S.G. § 3B1.1(a) enhancement based on Martinelli’s role in the
money laundering offense. Even though Martinelli was not convicted for the
underlying fraud offense, he was accountable for those acts because the acts were
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committed during the commission of the money laundering offense. Thus, the
fraud conduct was “relevant conduct” and the district court properly considered
those acts when it determined Martinelli’s role in the money laundering offense.
Lastly, Martinelli argues that the 17-year sentence was unreasonable because
it amounts to a life sentence given that he is 67 years old, and because Martinelli
demonstrated that, by applying the 18 U.S.C. § 3553(a) factors, a 5- or 10-year
sentence would be sufficient but no more than necessary to achieve the legitimate
goals of sentencing. Thus, Martinelli contends that although his sentence was
within the guideline range, it was unreasonable.2
In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court held that
appellate courts must undertake a two-part process in reviewing the sentence
imposed by the district court. First, the appellate court must determine whether the
district court followed proper procedures. Id. at 597. Second, “the appellate court
should then consider the substantive reasonableness of the sentence imposed under
an abuse-of-discretion standard.” Id. “In reviewing the ultimate sentence imposed
by the district court for reasonableness, we consider the final sentence, in its
entirety, in light of the § 3553(a) factors.” United States v. Thomas, 446 F.3d
2
Martinelli did not address the reasonableness of his sentence in his reply brief, but
instead, argued for the first time that the district court erred by: (1) failing to impose restitution;
and (2) imposing a fine. However, Martinelli has abandoned these issues because he failed to
raise them in his opening brief. See Levy, 416 F.3d at 1276 n.3.
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1348, 1351 (11th Cir. 2006).3 Our “[r]eview for reasonableness is deferential,” and
“[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. (citing United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)).
We do not “presume reasonable a sentence within the properly calculated
Guidelines range.” United States v. Campbell, 491 F.3d 1306, 1313 (11th Cir.
2007); see also Rita v. United States, 127 S.Ct. 2456, 2462 (2007) (holding that
appellate courts may apply a presumption of reasonableness to a within-guidelines
sentence). However, while a sentence within the advisory guidelines range is not
per se reasonable, we would ordinarily expect such a sentence to be reasonable.
Talley, 431 F.3d at 787-88. Moreover, “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).
Martinelli failed to establish that his sentence is unreasonable. As for
3
The § 3553(a) factors that a district court must consider include: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need for
the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense; (3) the need for the sentence imposed to afford
adequate deterrence; (4) the need to protect the public; (5) the need to provide the defendant with
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) the pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a)(1)-(7).
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procedural reasonableness, the district court properly considered the advisory
guidelines range and noted that the case had been remanded in light of Booker. In
fact, Martinelli does not argue that the district court erred in calculating the
advisory guidelines, nor that it committed any other procedural error.
As for substantive reasonableness, the district court considered the relevant
§ 3553(a) factors and articulated its reasons in open court, discussing, among other
things, the seriousness of the crime and finding that a lesser sentence would not be
just and appropriate under the facts of the case. The court also considered the
issues Martinelli raised regarding his age and health. It then sentenced Martinelli
to 210 months’ imprisonment, which was in the middle of the advisory guidelines
range of 188-235 months. The court did not abuse its discretion and impose an
unreasonable sentence. Therefore, we affirm.
AFFIRMED.
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