[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 9, 2009
No. 06-14461 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-80146-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES J. KERNS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 9, 2009)
Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges.
PER CURIAM:
Charles J. Kerns, Sr., appeals his 240-month sentence imposed on remand of
his case for resentencing, following his convictions for conspiracy to commit
securities fraud, 18 U.S.C. § 371, securities fraud, 15 U.S.C. §§ 78j(b) and 78ff(a),
wire fraud, 18 U.S.C. § 1343, and money laundering, 18 U.S.C. § 1957. Kerns
appeals the district court’s denial of his appointed counsel’s motion to withdraw
from further representation prior to resentencing. Kerns asserts the district court
abused its discretion in denying counsel’s motion to withdraw because his
complaints about his attorney’s performance during his original pre-trial, trial,
sentencing, and appellate proceedings created a conflict of interest between himself
and counsel. He contends he was prejudiced by the district court’s denial of the
motion because a different attorney would have raised arguments regarding the
loss calculation used to determine his sentence, and, as a result, he would have
received a lower sentence. Kerns further argues his sentence was substantively
unreasonable because: (1) his advanced age rendered his 240-month sentence a de
facto life sentence; and (2) his codefendants received sentences substantially
shorter than the sentence he received.
I.
We review a district court’s ruling on counsel’s motion to withdraw for
abuse of discretion. United States v. Calderon, 127 F.3d 1314, 1343 (11th Cir.
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1997). In Calderon, we held the district court did not abuse its discretion in
denying counsel’s motion to withdraw from further representation, where, although
the defendant had vigorously complained about counsel’s performance at trial, the
defendant and his counsel had communicated with each other about the
defendant’s sentencing hearing. Id. at 1342-43. As the basis for his motion to
withdraw, counsel referred to a series of pro se letters the defendant had written to
the district court after his conviction, in which the defendant asserted that counsel
had failed to file proper motions, was biased and inexperienced, and was
unenthusiastic about his representation of the defendant. Id. Counsel argued his
continued representation of the defendant would be unethical and contrary to his
client’s wishes, but conceded he still could make legal arguments on the
defendant’s behalf. Id. at 1343. This Court reasoned the district court had not
abused its discretion in denying counsel’s motion because counsel had been able to
communicate with the defendant regarding the sentencing hearing. Id.
The record reflects Kerns and his counsel remained able to communicate
about his resentencing proceedings. Additionally, counsel admitted, both at the
hearing on his motion to withdraw and at resentencing, that he could represent
Kerns in an ethical and competent manner. Therefore, the district court did not
abuse its discretion in denying counsel’s motion to withdraw. Because the district
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court did not abuse its discretion, we do not discuss Kerns’s assertion that a
different attorney may have successfully argued for a lower loss amount
attributable to him under the Guidelines.
II.
We review a defendant’s sentence for reasonableness. Gall v. United States,
128 S. Ct. 586, 594 (2007); United States v. Talley, 431 F.3d 784, 785 (11th Cir.
2005). Review for reasonableness is deferential. Talley, 431 F.3d at 788. The
reasonableness of a sentence is reviewed under an abuse-of-discretion standard
regardless of whether the sentence imposed is inside or outside a defendant’s
guideline range. United States v. Pugh, 515 F.3d 1179, 1189-90 (11th Cir. 2008)
(citing Gall, 128 S. Ct. at 597). Under the abuse-of-discretion standard, we will
reverse only if the district court made a clear error of judgment. Id. at 1191. “[A]
sentence may be substantively unreasonable, regardless of the procedure used.”
United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006).
The party challenging the sentence “bears the burden of establishing that
the sentence is unreasonable in the light of [the] record and the factors in section
3553(a).” Talley, 431 F.3d at 788. We have recognized that “there is a range of
reasonable sentences from which the district court may choose.” Id. Where the
court imposes a sentence that is within the guideline range, we ordinarily expect
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that sentence to be reasonable. Id. Where the sentence imposed is outside the
guideline range, we may not presume the sentence is unreasonable. Gall, 128 S.
Ct. at 597. We have rejected a defendant’s argument that his 305-month sentence
was unreasonable under § 3553(a) because he was 65 years’ old when he was
sentenced. United States v. Dowd, 451 F.3d 1244, 1256-57 (11th Cir. 2006)
(noting that § 5H1.1 generally discourages the use of age as a basis for a downward
departure). Under 18 U.S.C. § 3553(a)(6), a district court should consider, among
other things, “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.” We have
held a defendant’s sentence was reasonable in light of § 3553(a)(6) where,
although the defendant’s sentence was greater than the sentences his codefendants
received, factors such as the defendant’s role in coordinating a scheme or his
codefendants’ substantial assistance to the government caused the disparity to be
reasonable. See, e.g., United States v. Thomas, 446 F.3d 1348, 1356-57 (11th Cir.
2006) (holding the defendant’s 121-month sentence was reasonable despite the fact
that his codefendants’ sentences ranged from 41 to 53 months’ imprisonment
because the defendant had coordinated the offense); United States v. Williams, 526
F.3d 1312, 1323 (11th Cir. 2008) (holding the defendant’s sentence was
reasonable, despite the fact that a co-defendant received a substantially shorter
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sentence, because the co-defendant’s sentence reflected his substantial assistance to
the government).
Kerns has not met his burden of demonstrating his sentence was
unreasonable in light of the § 3553(a) factors. Talley, 431 F.3d at 788. In
consideration of Kerns’s age, the district court weighed Kerns’s advanced age
against the seriousness of his offense and the need to protect the public from fraud,
and, accordingly, varied downward from the minimum of Kerns’s guideline range
by 84 months. In light of the Sentencing Commission’s general disfavor of age as
a mitigating factor, the fact that the district court did not give Kerns a further
downward variance based on his age did not cause his sentence to be unreasonable.
See U.S.S.G. § 5H1.1; Dowd, 451 F.3d at 1256-57. Moreover, while Kerns
received a substantially longer sentence than his four codefendants, various factors
warranted this disparity. First, two of Kerns’s four codefendants were not
convicted of the same conspiracy as Kerns, but of unrelated money marketing
conspiracies. Second, Kerns did not dispute that each of his codefendants had
cooperated with the government and received substantial-assistance departures
under U.S.S.G. § 5K1.1. Third, while the record reflects that Kerns’s codefendants
participated in the conspiracy by illegally selling stock, Kerns was the one who
fraudulently solicited the stock and directed the stock be sold. Thus, the
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dissimilarities between Kerns and his codefendants were such that it was not
unreasonable for Kerns to receive a substantially longer sentence than his
codefendants. See Thomas, 446 F.3d at 1356-57; Williams, 526 F.3d at 1323. The
district court did not abuse its discretion in determining a 240-month sentence was
necessary to reflect the seriousness of Kerns’s offense, deter crime, and protect the
public. 18 U.S.C. § 3553(a); Pugh, 515 F.3d at 1189-90. Thus, Kerns has not met
his burden of demonstrating his sentence was substantively unreasonable. Talley,
431 F.3d at 788.
Accordingly, after review of the record and the parties’ briefs, we affirm.
AFFIRMED.
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