UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4053
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN LUIS LLAMAS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:05-cr-00400-FDW-4)
Argued: January 27, 2012 Decided: April 4, 2012
Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Michael Alan Rotker, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: Claire J. Rauscher,
Executive Director, Allison Wexler, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Asheville, North Carolina; Kevin Tate,
Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Lanny A.
Breuer, Assistant Attorney General, Greg D. Andres, Acting
Deputy Assistant Attorney General, Ellen R. Meltzer, Patrick M.
Donley, Peter B. Loewenberg, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Juan Luis Llamas appeals his sentence imposed following
remand for resentencing. He contends his sentence is
procedurally unreasonable because the district court’s
explanation incorporated by reference its analysis of the
§ 3553(a) factors from the original sentencing hearing, and he
contends the sentence is substantively unreasonable because it
is greater than necessary under the § 3553(a) factors. Finding
no error, we affirm.
I.
The facts of this case are well known to the parties and
the Court, and are recounted in greater detail in the prior
appeal. See United States v. Llamas, 599 F.3d 381, 383-85 (4th
Cir. 2010). We therefore present only a brief summary.
Llamas participated in an elaborate telemarketing
sweepstakes scheme operating in Costa Rica. Approximately
sixteen call centers used the same basic technique, but
functioned independently of each other. Llamas worked at one of
the call centers, working his way up from a translator and
security guard to a “room boss” or “office manager.” Id. at 384.
After working at the call center for approximately nine months,
Llamas withdrew from the scheme and returned to his home in
California.
3
As a result of his conduct, Llamas was named in a multi-
defendant indictment in the Western District of North Carolina.
He pleaded guilty to one count of conspiracy to defraud the
United States, in contravention of 18 U.S.C. § 371; forty-two
counts of wire fraud, in violation of 18 U.S.C. § 1343; one
count of conspiracy to commit money laundering, in violation of
18 U.S.C. § 1956(h); and nineteen counts of money laundering, in
violation of 18 U.S.C. § 1956(a)(1). 599 F.3d at 385.
Although Llamas’ presentence investigation report (“PSR”)
reflected a base offense level of seven, numerous adjustments
for offense-specific characteristics resulted in an adjusted
offense level of thirty-five. 1 At his first sentencing hearing,
Llamas objected to imposition of the “vulnerable victim” and the
three-level “aggravating role” increases. The district court
considered the parties’ arguments regarding the appropriateness
of the adjustments, and found that both should be imposed. The
1
The PSR recommended a sixteen-level increase based on the
$1.1 million loss attributed to the call center during the
period Llamas worked there (U.S.S.G. § 2B1.1(b)(1)(I)); a six-
level increase based on there being approximately five hundred
victims (§ 2B1.1(b)(2)(C)); a two-level increase because the
conspirators misrepresented they were acting on behalf of a
government agency (§ 2B1.1(b)(8)); a two-level increase because
a substantial amount of the fraud occurred outside the United
States (§ 2B1.1(b)(9)); a three-level increase based on Llamas’
managerial or supervisory role in the offense (§ 3B1.1(b)(1)); a
two-level increase because the majority of the scheme’s victims
were unusually vulnerable (§ 3A1.1(b)(1)); and a three-level
reduction for acceptance of responsibility (§ 3E1.1)).
4
court then calculated Llamas’ advisory Guidelines range to be
151 to 188 months’ imprisonment, and imposed a below-Guidelines
sentence of 132 months. It also ordered $4.27 million
restitution, relying on the losses caused by not only the call
center where Llamas worked, but also the other fifteen Costa
Rican call centers. 599 F.3d at 385-87.
In the initial appeal, Llamas did not challenge his
conviction, but did raise three issues regarding his sentence.
He asserted the district court erred in applying the vulnerable
victim adjustment; applying the aggravating role adjustment; and
improperly calculating the amount of loss for which he could be
held responsible in the restitution order. Id. at 387. We held
“that the [district] court’s application of the vulnerable
victim adjustment was procedurally [un]reasonable” given that
the court “failed to provide a sufficient explanation of its
finding that Llamas should have known that his victims were
unusually vulnerable.” Id. at 388-89. But we held that “the
district court did not clearly err in . . . find[ing] that
Llamas was a supervisor of the [call center’s] employees,
rendering the [aggravating role] adjustment appropriate.” Id. at
389-90. Lastly, we held—as the Government conceded—that the
district court “abused its discretion with respect to the
restitution order” because the Mandatory Victims Restitution Act
of 1996 only permits a defendant to be liable for restitution
5
for losses “caused by the offense,” i.e., losses attributable to
the one call center’s activity as opposed to the losses
attributable to all sixteen call centers. Id. at 390-91. For
these reasons, we affirmed Llamas’ sentence in part, vacated it
in part, and remanded “for such other and further proceedings as
may be appropriate.” Id. at 391.
On remand, the parties stipulated as to the amount of
restitution that should be ordered, but once again disagreed as
to the proper calculation of the Guidelines range, as well as to
an appropriate sentence under the § 3553(a) factors. 2 The
district court heard the parties regarding their view of an
appropriate sentence under the § 3553(a) factors. As discussed
in greater detail below, throughout those arguments, the court
engaged the parties in a discussion of their reasoning and
support for their positions. At the conclusion of the hearing,
the district court imposed a below-Guidelines sentence of 126
months’ imprisonment and ordered $1,685,252.46 restitution. In
so doing, the court stated:
The Court now is to the point of considering the
sentencing factors as they apply specifically to Mr.
Llamas’ case. The Court did consider all the
2
Because Llamas does not challenge his Guidelines
calculation, we do not need to address that stage of the
resentencing. The district court’s recalculation of the
Guidelines range yielded a term of 151 to 188 months’
imprisonment.
6
sentencing factors in December of 2008, particularly
starting on line 3 of page 161 of the transcript of
that hearing, which is Document 312 on the record.
The Court readopts all its analysis of the
sentencing factors that it did at that time, and
reapplies all those analysis as if the Court were
restating it today.
The Court does want to supplement its analysis,
though, as the parties recall, the Court did [vary]
downwardly 19 months because the Court was trying to
avoid a disparate sentence the Court believes was
occurring between [a co-defendant] and Mr. Llamas. The
Court once again readopts that 19-month variance.
The Court also wants to add that it has
considered the sentencing factors of restitution which
is set forth at [§ 3553(a)(7)].
[The court then explained its earlier error as to
restitution, and imposed a different amount. It
continued that it] believes a modest addition to the
variance is appropriate in this case.
So the Court varied last time to 19 months. The
Court believes a 25-month variance is appropriate in
this case, so it adds in the sentencing factor of
restitution, which the Court had miscalculated
previously.
With that said, the Court wants to emphasize it
has considered all of the sentencing factors set forth
in Section 3553(a). It has readopted its analysis of
the discussion of the sentencing factors from the
prior sentencing hearing . . . . It has supplemented
its analysis of sentencing factors today. It is now
ready to state a sentence it believes is sufficient
but not greater than necessary to accomplish the goals
of sentencing.
Llamas noted a timely appeal, and we have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
7
II.
In this appeal, Llamas challenges the procedural and
substantive reasonableness of his sentence, both of which we
review under the deferential abuse of discretion standard. See
Gall v. United States, 552 U.S. 38, 51 (2007)(“[A]ppellate
court[s] must review the [procedural] . . . . [and] substantive
reasonableness of the sentence imposed under an abuse-of-
discretion standard.”). We are required to consider first
“whether the district court committed a significant procedural
error in imposing the sentence under § 3553. If no procedural
error was committed, [we] can only vacate a sentence if it was
substantively unreasonable in light of all relevant facts.”
United States v. Heath, 559 F.3d 263, 266 (4th Cir. 2009)(citing
United States v. Curry, 523 F.3d 436, 439 (4th Cir. 2008)).
A.
Llamas first challenges the procedural reasonableness of
his sentence, asserting that the district court erred by
incorporating by reference the § 3553(a) analysis from the
original sentencing proceeding rather than conducting a new
analysis. He contends the district court’s method ignored the
arguments he raised at the resentencing hearing, which included
new information related to a sentencing disparity between
himself and his co-defendants. He argues that the district
8
court’s statements at the original sentencing “cannot reflect
consideration of [his] arguments at resentencing.” In addition,
Llamas claims that the rationale the district court provided in
the original sentencing was flawed because it was “unmoored from
§ 3553(a)” and relied only on certain unfavorable § 3553(a)
factors while overlooking those that weighed in his favor.
A district court commits a procedural error in sentencing
if it “fail[s] to consider the § 3553(a) factors, select[s] a
sentence based on clearly erroneous facts, or fail[s] to
adequately explain the chosen sentence—including an explanation
for any deviation from the Guidelines range.” United States v.
Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011)(internal
quotation marks and citations omitted). As is evident from the
recitation above, the district court’s statements at the time it
announced Llamas’ sentence were limited, relying largely on the
reincorporation of its prior comments. However, when considered
in its entirety, the resentencing hearing demonstrates that the
district court carefully considered each of Llamas’ arguments
and we therefore cannot say that the court’s statements at
sentencing constitute a reversible procedural error.
Llamas’ argument that the district court erred by
incorporating its comments from the earlier proceeding centers
on his belief that the district court ignored his arguments
during resentencing. But the record belies that contention.
9
Paramount is the fact that the district court imposed—for the
second time—a below-Guidelines sentence, thus indicating that it
agreed with Llamas that the § 3553(a) factors warranted a
measure of additional leniency in his sentence. 3 In fact, at the
resentencing, the district court granted a below-guidelines
variance of six months more than at the first sentencing.
Moreover, the district court was clearly familiar with
Llamas and the original proceeding, having not only conducted
the original sentencing hearing, but also indicating that the
judge had re-read the transcript from the original proceeding
and referring to specific parts of it during re-sentencing.
Furthermore, the court engaged in frequent exchanges with Llamas
throughout the resentencing hearing, clarifying, contradicting,
and questioning the arguments in such a manner that it is clear
3
Specifically, at the original sentencing hearing, the
district court stated that it had “considered all the sentencing
factors set forth in 3553(a),” found Llamas’ conduct to be
“egregious” and part of a “very sophisticated operation . . .
targeting victims in the United States, some of whom were
vulnerable in age and mental acuity,” and that the “extent of
the victimization is extraordinary.” J.A. 474-75. In addition,
the court noted several of the § 3553(a) factors weighed in
Llamas’ favor, including Llamas’ lack of a relevant criminal
history record, his “great success in rehabilitation,” his
contribution to society except for “this grievous deviation,”
the lack of a need to deter others, and the need to avoid
unwarranted sentencing disparities. J.A. 475-76.
10
he was hearing and considering Llamas’ arguments. 4 For example,
during Llamas’ argument regarding sentence disparities for
individuals convicted of fraud, the district court questioned
Llamas, “Where do those statistics come from because they seem
to be [in]consistent with the Sentencing Guidelines?” J.A. 638.
This query not only provided Llamas with an opportunity to
discuss the issue in greater detail, but also indicates that, in
fact, the court was listening to and considering his arguments.
The record reflects that throughout the resentencing hearing,
the district court remained attuned to Llamas’ arguments and how
they related to the § 3553(a) factors and the offense at issue.
Before resentencing Llamas, the district court specifically
indicated that it had once again “considered all of the
sentencing factors set forth in Section 3553(a).” J.A. 650-51.
And in addition to all of the above, the court referred
specifically to its detailed explanation in Llamas’ previous
sentencing hearing and reincorporated the rationale set forth
therein for purposes of explaining the reasons for the sentence
it was imposing. The court also supplemented that analysis with
4
For example, the district court corrected Llamas’ factual
statement at one point, J.A. 626, discussed the Bernie Madoff
case as it relates to fraud sentences, J.A. 637-39 and 646, and
gave counsel the opportunity “to reargue the sentencing factors
[at resentencing] and argue for continuation of a the variance.”
(J.A. 627.)
11
its additional consideration of § 3553(a)(7)(regarding
restitution), and found that this factor warranted an additional
downward variance. The record therefore reflects that where the
district court believed some new consideration should affect
Llamas’ resentencing it stated those reasons on the record and
acted accordingly.
Lastly, contrary to Llamas’ argument, the district court’s
earlier explanation of the reasons for its sentence was
sufficiently tethered to the § 3553(a) factors to permit review
of the reasonableness of the sentence. As we have frequently
indicated, a sentencing court need not “robotically tick through
§ 3553(a)’s every subsection,” United States v. Johnson, 445
F.3d 339, 345 (4th Cir. 2006), but simply must “set forth enough
to satisfy the appellate court that [it] has considered the
parties’ arguments and has a reasoned basis for exercising [its]
own legal decisionmaking authority,” United States v. Diosdado-
Star, 630 F.3d 359, 364 (4th Cir. 2011)(quoting United States v.
Rita, 551 U.S. 338, 356 (2007))(alterations in original).
As a whole, we cannot say that the district court failed to
consider the § 3553(a) factors when sentencing Llamas, nor did
it fail to provide a sufficient explanation for the sentence it
imposed. Therefore we find no merit in Llamas’ argument that his
sentence was procedurally unreasonable.
12
B.
Llamas also contends that even though his sentence is below
the advisory Guidelines range, it is still higher than necessary
to satisfy the § 3553(a) factors given the undisputed mitigating
circumstances of Llamas’ background and rehabilitation. In sum,
Llamas asserts the district court failed to explain why it
“believed it was ‘necessary’ to impose a 126-month sentence
. . . . ”
In reviewing substantive reasonableness, we “examine[] the
totality of the circumstances to see whether the sentencing
court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).” United
States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). We
“must defer to the trial court and can reverse a sentence only
if it is unreasonable, even if the sentence would not have been
the choice of the appellate court.” Heath, 559 F.3d at 266
(citations and emphasis omitted). Importantly, we recently held
that a below-Guidelines sentence is entitled to a presumption of
reasonableness against a defendant’s claim that the length of
the sentence is too long. United States v. Susi, No. 11-4041,
slip op. at 19 (4th Cir. March 21, 2012). While that presumption
can be rebutted, we readily conclude from the record that Llamas
has not done so in this case. Llamas’ arguments on appeal
reiterate the positions he took during the sentencing hearing.
13
The district court appropriately exercised its discretion in
determining the extent to which those positions supported a
variance. “That the court did not agree with [Llamas] as to the
value, or relative weight, to give each factor and thus did not
sentence [him] to as low a sentence as he desired does not in
itself demonstrate an abuse of the court’s discretion.” Id. at
20. Accordingly, we hold that Llamas’ sentence is substantively
reasonable.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
14