United States v. Yair Malol

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-12195 ELEVENTH CIRCUIT
December 3, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK

D. C. Docket No. 03-20157-CR-CMA

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

YAIR MALOL,
a.k.a. Yanni,
a.k.a. Charlie Levy,
a.k.a. Dany Malol,
a.k.a. Allen Mallul,
a.k.a. Zahi Melul,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 3, 2008)

Before TJOFLAT, DUBINA and WILSON, Circuit Judges.
PER CURIAM:

Yair Malol was convicted of 33 counts, including 1 count of conspiracy, 15

counts of wire fraud, 9 counts of extortion, 7 counts of making a false bill of

lading, and 1 count of conspiracy to commit money laundering.1 He was acquitted

of 1 count of wire fraud, 1 count of extortion, and 1 count of making a false bill of

lading.2 Malol appeals his 121-month sentence, arguing that it is unreasonable in

light of 18 U.S.C. § 3553(a) and his codefendants’ sentences.

First, he argues that his sentence creates a disparity because his is more than

twice as high as his codefendants’. Second, he argues that his sentence is

unreasonable because he has no prior criminal convictions, and has been isolated

from his family in Israel. Finally, he argues that the district court did not properly

consider his particular characteristics and the nature of his confinement. He does

not challenge district court’s sentence based on 36 instead of 33 counts of

conviction. We affirm in part, vacate in part, and remand for resentencing with

instructions.

We review a sentence imposed by the district court for both procedural and

1
We upheld Malol’s conviction and sentence in United States v. Malol, 476 F.3d 1283, 1284
(11th Cir. 2007). We vacated the sentence and remanded for resentencing, finding that the two-level
enhancement based on a Notice of Claim from the Department of Transportation was in error. Id.
2
Id. at 1284 & n.1.

2
substantive reasonableness. See Gall v. United States, 552 U.S. ___, ___, 128 S.

Ct. 586, 597, 169 L. Ed. 2d 445 (2007). Our “review for reasonableness is

deferential, and the party challenging the sentence has the burden of establishing

unreasonableness.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). We

review sentencing decisions for an abuse of discretion. Gall, 128 S. Ct. at 597.

A sentence may be procedurally unreasonable if the district court improperly

calculated the guideline range, treated the guidelines as mandatory rather than

advisory, failed to consider the appropriate § 3553(a) factors, selected a sentence

based on clearly erroneous facts, or failed to explain adequately the chosen

sentence. Id. After determining that the sentence is procedurally sound, we review

the substantive reasonableness of a sentence for an abuse of discretion. Id. Our

review for substantive reasonableness involves examining the totality of the

circumstances, including the extent of any variance from the guidelines range. Id.

“The fact that [we] might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.” Id.

After Booker,3 a district court first must correctly calculate and consult the

guideline range, and second, must consider the § 3553(a) factors. United States v.

3
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).

3
Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam).4

The district court does not need to discuss each § 3553(a) factor explicitly.

Talley, 431 F.3d at 786. “[A]n acknowledgment by the district court that it has

considered the defendant’s arguments and the factors in section 3553(a) is

sufficient under Booker.” Id. “The weight to be accorded any given § 3553(a)

factor is a matter committed to the sound discretion of the district court.” United

States v. Amedeo, 487 F.3d 823, 832 (11th Cir.) (citation and quotation marks

omitted), cert. denied, ___ U.S. ___, 128 S. Ct. 671, 169 L. Ed. 2d 526 (2007).

“We will not substitute our judgment in weighing the relevant factors.” Id.

Malol’s total sentence is procedurally reasonable because the district court

properly considered the recommended guideline range and the § 3553(a) factors.

Likewise, the sentence is substantively reasonable. The offenses were serious and

perpetuated over a period of time, and there were numerous victims. Malol cannot

show that his sentence was unreasonable due to a disparity between his sentence

and his codefendants’ because he has not established that his codefendants were

4
The § 3553(a) factors include (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to afford
adequate deterrence, to promote respect for the law, to provide just punishment for the offense, to
protect the public, and to provide the defendant with needed educational or vocational training or
medical care; (3) the kinds of sentences available; (4) the Sentencing Guidelines’ range; (5)
pertinent Sentencing Commission policy statements; (6) the need to avoid unwarranted sentencing
disparities among similarly situated defendants with similar records; and (7) the need to provide
restitution to victims. See 18 U.S.C. § 3553(a)(1)-(7).

4
similarly situated. See 18 U.S.C. § 3553(a)(6). Accordingly, we affirm Malol’s

sentences as reasonable.

II.

We may sua sponte note clerical error in the district court’s judgment and

remand with instructions to correct the error. See United States v. Anderton, 136

F.3d 747, 751 (11th Cir. 1998) (per curiam). “It is fundamental error for a court to

enter a judgment of conviction against a defendant who has not been . . . found

guilty of the crime recited in the judgment.” United States v. Diaz, 190 F.3d 1247,

1252 (11th Cir. 1999). Although a defendant normally must be present at an initial

sentencing or resentencing, “where the entire sentencing package has not been set

aside, a correction of an illegal sentence does not constitute a resentencing

requiring the presence of the defendant, so long as the modification does not make

the sentence more onerous.” United States v. Jackson, 923 F.2d 1494, 1497 (11th

Cir. 1991).

The district court sentenced Malol based on 36 counts. But the jury

convicted Malol of only 33 counts. The court’s written judgment erroneously

includes three extra counts and subjects Malol to a special assessment of $3,600, or

$100 per count of conviction. Because the district court sentenced Malol based on

three incorrect counts, we sua sponte vacate the sentence. We remand for the

5
district court to modify the sentence to reflect only 33 counts of conviction. Malol

does not need to be present at resentencing because the modification does not make

the sentence more onerous. See Jackson, 923 F.2d at 1497.

CONCLUSION

We affirm Malol’s sentence as reasonable. We vacate in part and remand

for the district court to resentence Malol without including the three incorrect

counts of conviction.

AFFIRMED IN PART; VACATED IN PART, AND REMANDED

WITH INSTRUCTIONS.