[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 20, 2008
THOMAS K. KAHN
No. 07-12526
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-00313-CR-3-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOYA WILLIAMS,
Defendant-Appellant.
________________________
No. 07-12653
Non-Argument Calendar
________________________
D. C. Docket No. 06-00313-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IBRAHIM DIMSON,
a.k.a. Dirk,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(March 20, 2008)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
In these consolidated appeals, Joya Williams appeals her conviction and 96-
month sentence, and Ibrahim Dimson appeals his 60-month sentence, for
conspiracy to commit theft of trade secrets, in violation of 18 U.S.C. § 1832(a)(1),
(3), and (5).
I.
Williams, who was employed by the Coca-Cola Company as an executive
assistant to a high level Coca-Cola employee, approached co-defendant Edmund
Duhaney in November 2005 at a family Thanksgiving dinner and told him that
they needed to discuss a private matter. Afterward, Williams began calling and
sending text messages to Duhaney about the matter. In late December 2005,
2
Duhaney met with Williams at her apartment in Norcross, Georgia. Williams told
Duhaney that she had copies of confidential Coca-Cola documents that were worth
money to some competitors.
Specifically, Williams told Duhaney that she had memory sticks containing
information, and she showed him confidential Coca-Cola marketing documents
and a product sample. Although Williams was angry with Coca-Cola because she
felt she was not “treated right,” she told Duhaney that she had signed a
nondisclosure confidentiality agreement with Coca-Cola and was therefore unable
to do anything with the confidential materials. She wanted Duhaney to determine
if someone could use the confidential information to obtain money from another
company.
About one week later, Williams contacted Duhaney to ask about his progress
with the Coca-Cola documents. Afterward, Williams made several more telephone
calls and text messages to Duhaney to check on his progress. In February 2005,
Duhaney contacted a friend of his, Dimson, who was interested in the documents
because he realized they were worth money. Dimson agreed to travel to Georgia to
review the documents. On April 4, 2006, Duhaney picked Dimson up from the
airport in Atlanta and brought him to Williams’ apartment.
While Williams explained the documents to Dimson, Duhaney listened and
3
then began thumbing through a magazine. During the meeting, Williams stated
that this happens all the time in corporate America and Pepsi would be interested in
this type of information. Dimson and Duhaney then decided to travel to a nearby
Wal-Mart store to purchase a black roller bag and plastic folders for the
documents.
Two or three days later, Williams called Duhaney on his cell phone and
inquired about Dimson’s progress with the documents. Two weeks later, Duhaney
contacted Dimson, who told Duhaney that he was working on the materials.
Dimson asked for Coca-Cola envelopes and told Duhaney to call Williams to
update her on the progress. Duhaney later spoke to Williams and told her that
Dimson needed an envelope to contact Pepsi. Williams replied that it wouldn’t be
a problem. Duhaney also asked Williams if she knew anyone at Pepsi, and
Williams said she had an idea and could find out.
On May 8, 2006, Dimson wrote a letter to Pepsi, which was addressed to
“Antonio J. Lucio SVP of Insights and Innovation” in Purchase, New York and
was sent in an official Coca-Cola business envelope. In it, Dimson claimed to be a
high-level employee for Coca-Cola, used the name “Dirk,” and provided a contact
phone number that was later shown to be his cell phone number. The letter stated
that Dimson had “very detailed and confidential information about Coca-Cola’s
4
marketing campaigns for the next 4 years” that he was “looking to deliver . . . to
the highest bidder.” It further provided that the “exclusive offer” to Pepsi was only
available for two weeks, and that Dimson was willing to provide proof of the
information.
On May 19, 2006, Pepsi personnel faxed a copy of the letter to Coca-Cola.
On May 24, 2006, Coca-Cola security personnel met with agents from the FBI,
who were provided the faxed copy of the letter and later the original. Coca-Cola
explained to the agents that the information in the letter was considered highly
confidential, and at that point, the FBI initiated an undercover investigation.
Special Agent Gerald Reichard was assigned to pose as an agent for Pepsi
interested in purchasing the information.
On May 25, 2006, Agent Reichard, acting undercover and using the name
“Jerry,” contacted Dimson at the phone number listed in the letter. Dimson
identified himself as “Dirk” and confirmed that he had sent the letter to Pepsi.
Dimson told Reichard that he possessed Coca-Cola documents and had almost
unlimited ongoing access to more confidential information.
On May 26, 2006, Agent Reichard received from Dimson 14 faxed pages of
Coca-Cola documents that contained the company’s logo and were marked
“confidential information” or “classified-highly restricted.” That same day,
5
Williams sent a 65 pound package through Federal Express to Dimson in New
York. She listed Duhaney as the sender. When Williams was eventually arrested
and her apartment was searched, the Federal Express receipt was recovered.
On May 30, 2006, Agent Reichard had several telephone conversations with
Dimson. During these conversations, Dimson told Reichard about certain Coca-
Cola documents he possessed. He requested that Reichard pay him $10,000 as
“good faith money” for the documents and as proof that he was willing to purchase
more information. Dimson provided an email address to Reichard, as well as his
Bank of America account number where Reichard was to deposit the money.
On June 2, 2006, Agent Reichard sent an email message to Dimson, telling
him that there was “quite a bit of interest” in Dimson’s information. Dimson
responded that he could provide some of the information by fax, and he also told
Reichard about several other documents he possessed. He expressed frustration
that Reichard was moving slowly, and stated that he wanted him to wire $9,000
into his Bank of America account quickly to show that he was serious. Dimson
also called Reichard to relate some of the same information. Later that day,
Reichard received a one-page fax that contained an example of the documents
Dimson possessed.
On June 6, 2006, Dimson called Agent Reichard and offered additional
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Coca-Cola documents, as well as an actual product sample. Dimson sent Reichard
two faxes with examples of the new documents. On June 7, 2006, Coca-Cola
security installed two cameras to observe Williams’ work area. Dimson and
Reichard continued their negotiations.
On June 12, 2006, Coca-Cola security installed additional cameras near
Williams’ work area. Footage from the cameras showed Williams at her desk
going through multiple files looking for documents. After locating them, Williams
placed the papers into her personal bag. In some cases, Williams stuffed papers
into a plastic bag before placing them in her bag. Williams was also observed
holding a new Coca-Cola product sample before placing it into her personal bag.
On June 15, 2006, Agent Reichard notified Dimson that he had the funds
Dimson had requested and wanted to talk to him. The two agreed to meet at
Atlanta Hartsfield-Jackson International airport the next day. On June 16, a
warrant was obtained to wiretap Dimson’s cell phone. The FBI then recorded
conversations between Dimson and Duhaney, as well as voice mail messages
between Dimson and Williams. Also on that day, Agent Reichard met with
Dimson at the Hartsfield-Jackson airport as they had planned. Dimson provided
Reichard with Coca-Cola documents marked highly confidential, as well as a glass
bottle containing a liquid product sample. Reichard paid Dimson $30,000 up front,
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and agreed to pay him an additional $45,000 after successful product testing.
Duhaney picked Dimson up from the airport, and the two traveled together to
Duhaney’s home in Decatur, Georgia.
Dimson gave Duhaney an envelope with $8,000 in it and asked him to give
it to Williams. Duhaney kept $2,000 for himself, and the next day gave Williams
the remaining $6,000 in cash. Williams deposited $4,000 in cash into her bank
account that same day. Video surveillance footage at Coca-Cola revealed that
Williams continued to take Coca-Cola documents and product samples, and
Dimson kept contacting Agent Reichard with new information he had to offer.
Coca-Cola personnel verified that the materials Reichard had received from
Dimson were valid trade secrets and were confidential.
On June 22, 2006, Dimson emailed Agent Reichard a list of 20 items in his
possession, and during conversations over the next several days, they negotiated a
purchase price of $1.5 million for all the items. They agreed to meet on
Wednesday, July 5, 2006, to complete the sale. In order to ensure his presence at
their meeting, Dimson requested that Reichard wire a total of $11,000 into his bank
account. Dimson also called Duhaney to discuss the breakdown of the money, and
they agreed to give Williams, who they referred to as “Joya,” $100,000 to
$150,000, with $50,000 up front.
8
On June 29, 2006, the FBI wired $10,000 into Dimson’s bank account.
Dimson called Agent Reichard to let him know he had received the transfer. The
two met at the restaurant in a Marriott hotel in Atlanta on July 5, 2006. Duhaney
drove Dimson to the hotel and remained in his car during the meeting. At the
meeting, Reichard agreed to purchase the additional documents and product
samples from Dimson for $1.5 million. After the meeting, the FBI arrested
Dimson and Duhaney. Williams was arrested later.
Following their arrests, a federal grand jury indicted Williams, Dimson, and
Duhaney for conspiracy to commit theft of trade secrets, in violation of 18 U.S.C. §
1832(a)(1), (3), and (5). Dimson pleaded guilty to the charge without a plea
agreement, and Williams pleaded not guilty and proceeded to a jury trial. Duhaney
later pleaded guilty pursuant to a written plea agreement and agreed to testify
against Williams.
After a lengthy trial where Williams testified on her own behalf, the jury
convicted her of the conspiracy charge. She and Dimson were sentenced at the
same sentence hearing. The district court varied above the guidelines for both of
them, sentencing Williams to 96 months imprisonment and Dimson to 60 months
imprisonment. Williams and Dimson timely appealed.
9
II.
Williams first contends that the district court violated her Sixth Amendment
rights by limiting her cross-examination of Duhaney regarding notes found in his
car that he took from the book The 48 Laws of Power. According to Williams, the
evidence was crucial to her case because it showed why Duhaney would portray
Williams as a knowing participant in the conspiracy when, according to her, she
was not.
Generally, we review a district court’s evidentiary rulings only for an abuse
of discretion. United States v. Taylor, 17 F.3d 333, 340 (11th Cir. 1994).
However, the district court’s discretion in limiting the scope of cross-examination
is also subject to the requirements of the Sixth Amendment. Id.
The Confrontation Clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. Amend. VI. It guarantees criminal defendants an opportunity to
impeach, through cross-examination, the testimony of witnesses for the
prosecution. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1366 (11th Cir.
1994). The importance of full cross-examination increases where the witness is the
star government witness or participated in the crimes for which the defendant is
being prosecuted. Taylor, 17 F.3d at 340. However, the defendant’s right to
10
cross-examine witnesses is not without limitation, as she is entitled to only “an
opportunity for effective cross-examination, not cross-examination that is effective
in whatever way, and to whatever extent, the defense might wish.” Delaware v.
Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985).
“[O]nce there is sufficient cross-examination to satisfy the Sixth
Amendment’s Confrontation Clause, further questioning is within the district
court’s discretion.” Taylor, 17 F.3d at 340. “The test for the Confrontation Clause
is whether a reasonable jury would have received a significantly different
impression of the witness’ credibility had counsel pursued the proposed line of
cross-examination.” United States v. Garcia, 13 F.3d 1464, 1469 (11th Cir. 1994);
see also United States v. Haimowitz, 706 F.2d 1549, 1558–59 (11th Cir. 1983)
(holding that the district court did not abuse its discretion in restricting defendant’s
ability to cross-examine witness regarding fraudulent documents he had executed
where the jury had ample information regarding his credibility, including his prior
convictions and that he was testifying under a plea agreement).
As Williams contends, the cross-examination of Duhaney was important to
her defense because he was the government’s star witness, and he was also a
participant in the crime. See Taylor, 17 F.3d at 340. The district court, however,
did allow Duhaney to answer several questions about the notes before it instructed
11
Williams’ counsel to discontinue that line of questioning. During this testimony,
Duhaney told the jury that he had taken notes from the book because he had
borrowed it from someone, but he did not believe in what the notes said, even
though he admitted to thinking “they were something.”
In addition, Williams’ had already extensively challenged Duhaney’s
credibility by questioning him on: (1) his prior convictions and violation of his
supervised release; (2) his plea bargain with the government and the benefits he
could obtain by testifying; and (3) the fact that he had lied about his participation
in the conspiracy several times when he was initially questioned by the
government. Because Williams’ counsel had already presented the jury with
substantial evidence to draw a fair inference about Duhaney’s credibility, and
Duhaney had already told the jury that he did not believe in what was stated in his
notes from the book, a reasonable jury would not have received a different
impression about his credibility had the district court permitted further questioning
about the notes. Therefore, the district court did not abuse its discretion by
limiting Williams’ cross-examination of Duhaney on his notes. See Haimowitz,
706 F.2d at 1558–59.
III.
Williams next contends that the district court improperly limited her closing
12
argument, in violation of her due process and fair trial rights, by instructing the
jury that her counsel’s explanation of reasonable doubt was inaccurate.
Specifically, Williams argues that her counsel properly explained the concept of
reasonable doubt by comparing it to a patient’s desire to seek a second opinion
when told by a doctor “you know, I’m looking at you and I think you need to have
both of your legs amputated.”
The conduct of a district judge during trial is reviewed only for an abuse of
discretion. See United States v. Hall, 77 F.3d 398, 400 (11th Cir. 1996). “The
district court has broad discretion over closing argument and will be reversed only
if counsel is prevented from making all legal arguments supported by the facts.”
Id.
Defense counsel is entitled to apply the accepted definition of reasonable
doubt to the facts of the case. Id. at 401. However, “[i]n arguing the law to the
jury, counsel is confined to principles that will later be incorporated and charged to
the jury.” United States v. Trujillo, 714 F.2d 102, 106 (11th Cir. 1983). Therefore,
counsel cannot argue “incorrect or inapplicable theories of law.” United States v.
Valdes-Guerra, 758 F.2d 1411, 1416 (11th Cir. 1985). Additionally, the district
court can admonish counsel who make improper comments. United States v.
13
Jackson, 470 F.2d 684, 687 (5th Cir. 1972).1 “Such comments from the bench do
not constitute reversible error unless they deprive the defendant of [her] right to an
impartial trial.” Id.
The district court did not abuse its discretion in advising the jury that
Williams’ counsel’s explanation of reasonable doubt was inaccurate. It was that,
and confusing as well. The court instructed the jury that proof beyond a reasonable
doubt is “proof of such a convincing character that you would be willing to rely
and act upon it without hesitation in the [most] important of your own affairs.”
The court was permitted to tell the jury that Williams’ counsel’s example was
inaccurate. See Jackson, 420 F.2d at 687.
IV.
Williams also contends that the district court erred by improperly instructing
the jury on the meaning of reasonable doubt. Specifically, Williams argues that the
example the district court judge did use to describe reasonable doubt, which had to
do with open-heart surgery the judge had previously undergone, unconstitutionally
changed the government’s burden of proof.
We review de novo a challenge to the district court’s jury instructions.
1
In our en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981), we adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
14
United States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993). “Generally, district
courts have broad discretion in formulating jury instructions provided that the
charge as a whole accurately reflects the law and the facts . . . .” United States v.
Prather, 205 F.3d 1265, 1270 (11th Cir. 2000) (quotation marks and citation
omitted). “[W]e will not reverse a conviction on the basis of a jury charge unless
the issues of law were presented inaccurately, or the charge improperly guided the
jury in such a substantial way as to violate due process.” Id. (quotation marks and
citation omitted). If the instructions accurately reflect the law, we give the trial
court wide discretion in determining the style and wording of the instructions.
Trujillo, 146 F.3d at 846. A jury is presumed to follow the district court’s
instructions. United States v. Chandler, 996 F.2d 1073, 1088 (11th Cir. 1993).
As we mentioned above, the court initially instructed the jury to the agreed-
upon formulation that proof beyond a reasonable doubt is “proof of such a
convincing character that you would be willing to rely and act upon it without
hesitation in the [most] important of your own affairs.” Williams does not
challenge that instruction, but instead argues that the district court judge’s example
improperly changed the government’s burden of proof because it failed to state that
the reliance on the proof must be without hesitation.
However, when Williams’ counsel pointed out the omission, the court
15
immediately instructed the jury to ignore the example and repeated the initial,
agreed-upon instruction. We presume that the jury followed the district court’s
instruction to ignore the example, see Chandler, 996 F.2d at 1088, and the court’s
remaining instructions accurately characterized the government’s burden regarding
reasonable doubt. Therefore, the district court did not err in its instructions to the
jury on reasonable doubt. See Prather, 205 F.3d at 1270.
V.
Finally, Williams and Dimson both contend that the district court imposed
unreasonable sentences upon them. They argue that the district court placed undue
influence on just one of the 18 U.S.C. § 3553 factors, the “seriousness of the
offense,” and failed to consider the lesser weight the court placed on the
seriousness of the offense when it sentenced their co-conspirator, Duhaney.2
Dimson also argues that the court erred in referencing his likelihood of recidivism
as an explanation for an above-guidelines sentence without explaining how the
guidelines did not adequately address his criminal history.
2
Williams and Dimson also contend that the district court improperly relied on a fact not
within the record, the annual revenue of Coca-Cola, in determining the seriousness of the
offense. This argument is without merit. Contrary to their contention, the $24 billion figure the
district court used was in the record, and the district court did not err by considering it in
deciding whether the $1.5 million intended loss calculated under the guidelines underrepresented
the seriousness of the offense. See United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir.
1999) (“A court may consider any information (including hearsay), regardless of admissibility at
trial, in determining whether factors exist that would enhance a defendant’s sentence, provided
that the information is sufficiently reliable.”).
16
A.
Williams contends that her 96-month sentence, which is above the
guidelines range, is unreasonable because although the court properly calculated
the guidelines range, it then erred by: (1) placing undue influence on one of the §
3553(a) factors, the seriousness of the offense, to the exclusion of all others; (2)
ignoring that her case is a “cookie-cutter” trade secrets case; and (3) creating an
unwarranted disparity with Duhaney, who the court sentenced to 24 months
imprisonment.
We review a final sentence imposed by a district court for reasonableness.
United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007). The reasonableness
of a final sentence is reviewed only for an abuse of discretion. Gall v. United
States, 552 U.S.___, 128 S. Ct. 586, 594 (2007). The district court must impose a
sentence that is both procedurally and substantively reasonable. United States v.
Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006).
The Supreme Court has explained that a sentence may be procedurally
unreasonable if the district court improperly calculates the guideline range, treats
the guidelines as mandatory, fails to consider the appropriate statutory factors,
bases the sentence on clearly erroneous facts, or fails to adequately explain its
reasoning. Gall, 128 S. Ct. at 597. The Court also suggested that review for
17
substantive reasonableness involves an inquiry into whether the factors in 18
U.S.C. § 3553(a) support the challenged sentence. See id. at 600.
If, after correctly calculating the guidelines range, a district court decides
that a sentence outside that range is appropriate, it must “consider the extent of the
deviation and ensure that the justification is sufficiently compelling to support the
degree of the variance.” Id. at 597. Accordingly, the district court must “includ[e]
an explanation for any deviation from the Guidelines range.” Id. In determining
whether a sentence is substantively reasonable, this Court must consider the totality
of the circumstances. Id. If the sentence is outside the guidelines range, this Court
may consider the deviation, “but must give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”
Id.
“The fact that the appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to justify reversal of the district
court.” Id. (citation omitted). We have recognized that “there is a range of
reasonable sentences from which the district court may choose,” and the burden of
establishing that the sentence is unreasonable in light of the record and the
§ 3553(a) factors lies with the party challenging the sentence. United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). Nonetheless, the district court does not
18
have unfettered discretion in sentencing. United States v. Pugh, ___F.3d___, No.
07-10183, slip op. at 1090 (11th Cir. Jan. 31, 2008).
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 promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to protect the
public; (5) the kinds of sentences available; (6) the Sentencing Guidelines range;
(7) pertinent policy statements of the Sentencing Commission; and (8) the need to
avoid unwanted sentencing disparities. See 18 U.S.C. § 3553(a). While the district
court must consider these factors in imposing the sentence, it is not required to
discuss each factor. Talley, 431 F.3d at 786.
A district court’s unjustified reliance on a single § 3553(a) factor may be a
“symptom” of an unreasonable sentence. See Pugh, No. 07-10183, slip op. at
1090–91 (citation omitted). However, such a sentence is not necessarily
unreasonable. See Gall, 128 S. Ct. at 600 (holding that a district court did not
commit reversible error simply because it “attached great weight” to one factor).
Indeed, “[t]he weight to be accorded any given § 3553(a) factor is a matter
committed to the sound discretion of the district court.” United States v. Clay, 483
F.3d 739, 743 (11th Cir. 2007) (quotation omitted).
19
At Williams’ sentence hearing, the district court discussed several of the §
3553(a) factors: (1) the fact that Williams had lied to the court about her previous
criminal history, 18 U.S.C. § 3553(a)(1); (2) the fact that she was well-educated
and did not need any additional vocational training, id. § 3553(a)(2)(D); (3) the
need to deter Williams and others from committing similar crimes, id. §
3553(a)(2)(B), (C); (4) the guidelines and policy statements, which the district
court did not find helpful because they did not deal with this kind of case, id. §
3553(a)(4), (5); (5) the need to protect the trade secrets of companies, id. §
3553(a)(2)(B), (C); and (6) the seriousness of the offense, id. § 3553(a)(2)(A). In
describing why it found the offense to be so serious, the court discussed the harm
that Coca-Cola could have suffered if Williams and her co-conspirators had
succeeded in selling its trade secrets to a rival, and the danger to the United States
economy these crimes pose.
Although the court attached great weight to one factor, the seriousness of the
offense, this does not mean that its sentence, which was below the statutory
maximum of 10 years imprisonment, was unreasonable. See Gall, 128 S. Ct. at
600. The district court justified its reliance on that factor by explicitly stating why
it found the offense to be so serious, and explaining that it did not believe the
guidelines properly addressed the offense and that the policy statements were not
20
helpful. Because the district court explained based on the § 3553(a) factors why it
varied above the guidelines range, and it is within the district court’s discretion to
decide how much weight to give each § 3553(a) factor, see Clay, 483 F.3d at 743,
Williams has not shown that her 96-month sentence was either procedurally or
substantively unreasonable, see Gall, 128 S. Ct. at 597.
The fact that one of Williams’ co-conspirators, Duhaney, received a
substantially shorter sentence does not change this result. Although one of the §
3553(a) factors does require the court to “avoid unwarranted sentence disparities,”
18 U.S.C. § 3553(a)(6), Duhaney pleaded guilty to conspiracy to commit theft of
trade secrets pursuant to a written plea agreement, and his sentence reflected the
substantial assistance he provided to the government by testifying against
Williams. Therefore, Williams has not shown that her and Duhaney’s situations
are similar enough that the differences between their sentences are “unwarranted.”
B.
Dimson also has not shown that the district court imposed an unreasonable
sentence on him. Like Williams, Dimson does not challenge the district court’s
calculation of his guidelines range. Instead, he contends that the district court
erred in imposing a 60-month sentence, which was above the guideline range, by:
(1) placing unwarranted emphasis on the seriousness of the offense to the
21
exclusion of the other § 3553(a) factors; (2) creating an unwarranted disparity with
Duhaney’s sentence; and (3) referencing Dimson’s likelihood of recidivism as an
explanation for an above-guidelines sentence without explaining how the
guidelines did not adequately address his criminal history.
During Dimson’s sentence hearing, the district court discussed several of the
§ 3553(a) factors, including: (1) Dimson’s serious criminal record, 18 U.S.C. §
3553(a)(1); (2) the guidelines and policy statements, which the district court did
not find helpful because they did not deal with this kind of case, id. § 3553(a)(4),
(5); (3) the need to protect trade secrets of companies, id. § 3553(a)(2)(B), (C); and
(4) the seriousness of the offense, id. § 3553(a)(2)(A). In terms of the seriousness
of the offense, the district court repeated what it had told Williams, which focused
on the severity of the harm that could have befallen Coca-Cola if the trade secrets
had been sold to a rival, and the danger to the U.S. economy that these types of
crimes pose.
As we mentioned above, the fact that the district court emphasized one §
3553(a) factor, the seriousness of the offense, does not mean that Dimson’s
sentence was unreasonable. See Gall, 128 S. Ct. at 600. In addition, although
Dimson’s previous offenses were included in his criminal history and were
therefore part of the calculation of his guideline range, the court emphasized that
22
he had committed previous “fraud-related” crimes. This fits squarely into one of
the § 3553(a) factors, the history and characteristics of the offender, 18 U.S.C. §
3553(a)(1), and was therefore a proper basis for the court’s consideration. See also
18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an offense which a
court . . . may receive and consider for the purpose of imposing an appropriate
sentence.”).
Dimson has also failed to show that a similarly situated defendant received a
shorter sentence. Although he argues that the court created an unwarranted
disparity with Duhaney’s 24-month sentence, as we mentioned above, Duhaney
provided substantial assistance to the government by testifying against Williams at
her trial. Because Dimson did not provide any assistance to the government, there
was no “unwarranted” disparity between his and Duhaney’s sentences.
Just as when it sentenced Williams, the district court explained based on the
§ 3553(a) factors why it was varying upward from the guidelines range for
Dimson’s sentence, and it was within the court’s discretion to give more weight to
one § 3553(a) factor, the seriousness of the offense, than it gave to the other
factors. See Clay, 483 F.3d at 743. Dimson has not met his burden of showing
that his 60-month sentence, which was 5 years below the 10-year statutory
23
maximum, was either procedurally or substantively unreasonable. See Talley, 431
F.3d at 788.
AFFIRMED.
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