[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 22, 2009
THOMAS K. KAHN
No. 08-16356 CLERK
D. C. Docket No. 07-00202-CR-7-LSC-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM LUTHER LANGSTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Alabama
(December 22, 2009)
Before DUBINA, Chief Judge, BIRCH and SILER,* Circuit Judges.
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
DUBINA, Chief Judge:
Once again, our circuit is presented with an appeal involving an Alabama
official and his part in a massive case of public corruption. The facts of this case
should be an affront to every decent law-abiding citizen in the State of Alabama.
A federal jury found William Luther Langston, former Executive Director of the
Alabama Fire College, guilty on 36 counts of mail fraud, wire fraud, theft of
federal funds, conspiracy, money laundering, and conduct giving rise to criminal
forfeiture. Following the convictions, the district court sentenced Langston to 125
months’ imprisonment plus three years of supervised release and ordered him to
pay $1,428,945.40 in restitution. On appeal, Langston challenges his convictions
and final sentence.
After a thorough review of the record, we are compelled to vacate his
convictions on Counts 5–12, 21–22, 25–27, 30–32, and 36. On these counts, the
Government erroneously indicted Langston as an agent of the State of Alabama
under 18 U.S.C. § 666, instead of an agent of the Alabama Fire College. The
record demonstrates that the Government failed to produce sufficient evidence to
prove that Langston was a state agent as it pertained to these specified counts.
However, we conclude sufficient evidence exists in the record to support the
remaining counts of conviction, including the § 666 counts in the indictment that
2
charged Langston as an agent of the Alabama Poison Control Center, (Counts
13–19), and charged him as an agent of both the state and the Alabama Poison
Control Center, (Counts 33–34).
I. FACTS
The Agencies
Prior to 1955, the Alabama Department of Education coordinated fire
fighter training in Alabama. In that year, the Alabama Legislature created the
Alabama Fire College (“Fire College”), which the Alabama Board of Education
later affiliated with Shelton State Community College in Tuscaloosa. In 1988, the
Legislature merged the Fire College with another agency known as the Alabama
Fire Fighters Personnel Standards and Education Commission (“Fire College
Commission”). See Ala. Code § 36-32-2 (2001). The Fire College Commission is
comprised of the State Fire Marshal, four gubernatorial appointees, and two
representatives of fire fighters’ associations. Id. The mission of both the Fire
College and the Fire College Commission is to provide training and certification
for the state’s fire fighters and emergency medical technicians located within the
state. The Fire College is authorized to hire an Executive Director, and the
Alabama Fire Fighters’ Personnel Standards and Education Fund within the State
Treasury provides the funding for both agencies. Id. § 36-32-9. The Executive
3
Director works at the sole discretion of the Fire College Commission. Id. § 36-32-
3 (“The commission may employ an executive director who shall serve at the
discretion of the commission.”).
Langston served as Executive Director of the Fire College from 1988 to
2006, and during that same period, served as Chairman of the Fire College
Foundation, a non-profit entity formed by Langston and others to support the Fire
College by providing scholarship support for emergency medical service students.
Langston’s employment contracts were with the Fire College Commission, and his
paychecks and W-2s came from the Fire College Commission. Langston was paid
according to a State Board of Education salary schedule, and he received State
employment benefits, such as insurance, leave, and retirement. As Executive
Director, Langston was responsible for all operations of the Fire College: he hired,
terminated, and reassigned Fire College employees, managed and directed the
funds of the Fire College, and entered into contracts on behalf of the Fire College.
The Alabama Poison Control Center (“Poison Center”), a non-profit center
that provides educational information regarding poisonings in Alabama, operates
as a division of the Fire College. The Poison Center received more than $100,000
of federal funds from the United States Department of Health and Human Services
each year from 2001 through 2006. Dr. John Fisher, Director of the Poison
4
Center, testified that he and his employees are state employees, but his
employment contract was with the Fire College and the Fire College Commission.
Dr. Fisher reported directly to Langston, his “boss.” [R. Vol. II, Doc. 115, p. 249,
254.] Dr. Fisher stated that Langston indicated to him that the Poison Center
should make regular contributions to the Fire College Foundation to compensate
for shortfalls in the budget. Dr. Fisher testified that the Poison Center paid
$50,000 to the Fire College and $30,000 to the Fire College Foundation each year
through periodic payments. In total, the Poison Center gave over $500,000 to the
Fire College and the Fire College Foundation, at the direction of Langston. [Id. at
243–59.] Dr. Fisher also testified that Langston asked him to write a consultation
agreement between Dr. Fisher and Robert Nix, Deputy Director of the Fire
College, to pay Nix $20,000 for work for the Poison Center. Nix did no
substantive work for the Poison Center. [Id. at 260.]
Langston diverted Fire College funds to himself, family, and friends
In 2001 and 2002, Langston gave $3,000 raises to five part-time Fire
College employees in return for their $1,000 contribution to the “coffee fund,”
which was Langston’s personal fund. [R. Vol. IV, Doc. 117, p. 12–79.] Unlike
the employee’s political contributions through their local fire departments, with
these contributions, there were no consent forms, payroll deductions, or reports.
5
In 2002, the Shelton State Community College Foundation (“Shelton State
Foundation”) decided to build a house for Shelton State Community College
President, Rick Rogers, in the Woodbank subdivision near the college. The
builder’s cost estimate for the house — $504,000 — was higher than the amount
that Shelton State Foundation agreed to spend, so Rogers and Langston agreed
that Shelton State Community College and the Fire College would contribute the
difference out of their respective budgets. Langston then spent about $99,000 of
Fire College funds to pay contractors building the Woodbank house. To conceal
this misuse of funds, Langston ordered all requisitions and purchase orders
relating to the Woodbank house to be sent directly to him, bypassing the usual
channels. Langston also directed James Levert, the Fire College’s maintenance
manager, to arrange with a sub-contractor, Dennis Sudduth Services, Inc. (a Fire
College contractor), to accept payments from the Fire College and transfer those
payments to another construction company (not a Fire College contractor) who
was working on the house. [R. Vol. IV, Doc. 117, p. 79–134.] Langston and
Rogers also arranged for Fire College and Shelton State Community College
employees to work on the Woodbank house during business hours. [Id. at
134–177.]
Langston and Roy Johnson arranged bogus jobs for their family members
6
Roy Johnson, former Chancellor of Post-Secondary Education and former
state legislator, testified that he and Langston “agreed to look after each other’s
children.” [R. Vol. V., Doc. 118, p. 13.] Under this agreement, Langston offered
Johnson’s daughter employment as a curriculum specialist at the Fire College, for
which little or no work was expected. [Id. at 22.] In return, Johnson gave
Langston’s daughter-in-law, Kelly, a job at Southern Union Community College
and later at Wallace Community College. She did no meaningful work, but the
State paid her $18,000 from 1998 through 1999. After this contract expired,
Langston asked Johnson to find Kelly another job, which he did, and she received
another $18,000 for bogus employment. In addition, Johnson arranged for
Gadsden State Community College to award Langston’s son, Bo, consulting
contracts valued at $66,000.
Langston diverted funds to Robert Nix
In 1996, Robert Nix retired from his full-time position at the Fire College
and began receiving limited state retirement benefits. Langston lobbied Johnson
to find a job for Nix in the two-year college system that did not require any work.
Johnson referred Nix to Winston Hayes, owner of the Access Group, a computer
software company that conducted business with the Department of Post-Secondary
Education and the Fire College. Langston executed a contract obligating the Fire
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College to pay Access Group $3,000 per month for computer consultation. [R.
Vol. III, Doc. 116, p. 138–42.] Access Group executed a consulting agreement
with Nix to pay him $2,500 per month for computer consultation to support
Access Group in its bogus work for the Fire College. Nix did no work for Access
Group, and Access Group did no work for the Fire College. [Id. at 142–44.]
Through this scheme, Langston diverted $92,500 of Fire College funds to Nix.
Langston also diverted funds from the Poison Center to Nix by directing Dr.
Fisher to put Nix on his payroll as a consultant. Nix testified that he did no work
for the Poison Center, [R. Vol. I, Doc. 114, p. 104.], but Dr. Fisher recalled that
Nix once repaired a leaky toilet. [R. Vol. II, Doc. 115, p. 260–61.] From 1998 to
2004, Langston directed the diversion of $126,500 of Poison Center funds to Nix.
Langston diverted funds to the Fire College Foundation
The Alabama Board of Education Trust Fund, via the Fire College
Commission, provided annual appropriation of funds to the Fire College, which
included funds to cover all the salaries of the Poison Center employees. Langston
created an artificial budget shortfall for Poison Center salaries and told Dr. Fisher
that the Fire College would cover that shortfall out of its remaining funds.
Langston told Dr. Fisher that the Poison Center would have to reimburse those
additional expenditures by diverting $512,000 from the Poison Center to the Fire
8
College Foundation, not the Fire College. Dr. Fisher testified that Langston
indicated to him that the Poison Center “should make regular contributions to the
foundation.” [R. Vol. II, Doc. 115, p. 242.] Even after the authorities began their
investigation and the FBI raided the Fire College, Langston told Dr. Fisher to keep
making Poison Center payments because if he stopped, it would look “suspicious.”
[Id. at 257.]
In 2002, Langston asked then-Governor Don Siegelman for emergency
financial assistance for the Fire College. Johnson approved that request on behalf
of the Alabama Department of Post-Secondary Education and submitted a voucher
to the state Comptroller requesting $300,000 for the Fire College Foundation, not
the Fire College. Although Langston acknowledged that the check should have
been made out to the Fire College, he told Nix, the Fire College Foundation’s
treasurer, to deposit it into the Fire College Foundation’s account. [R. Vol. I, Doc.
114, at 85.]
Langston also contacted state legislator Bryant Melton to apply for a
community service grant out of the Alabama Education Trust Fund to provide
funds for the Fire College Foundation. Because Melton was having financial
problems due to a gambling habit, he agreed to provide funds to the Fire College
Foundation in exchange for Langston’s help with Melton’s daughter’s medical
9
school expenses. Melton submitted three fraudulent applications for community
service grants for the Fire College Foundation, stating that such grants would be
used to buy computer software for Fire College students and to provide
scholarships for volunteer fire fighters. The total amount of the bogus
applications was $85,000. In return, Langston directed the Fire College
Foundation to grant amorphous scholarships to Melton’s daughter. Langston
delivered the checks to Melton, who cashed the checks for his own benefit. The
total amount of the money diverted to Melton was $68,000, which left a net
benefit of $17,000 to the Fire College Foundation.
Langston diverted funds through the Fire College to private individuals
In January 2004, Langston encouraged the Fire College Foundation to build
or buy a house for him. Charles Hardin, an attorney and Fire College Foundation
board member, testified that buying a house would be a good investment for the
Fire College Foundation. [R. VI, Doc. 119, p. 169.] The Board unanimously
approved the purchase of a house. Langston selected the location, near his
daughter, grandchildren, and elderly mother-in-law, and his wife selected the
furnishings. At Langston’s direction, the Fire College Foundation spent more than
$335,000 to buy the house and another $4,800 on a mattress and box springs, bed
linens, and draperies to furnish the house.
10
Langston also approved the Fire College Foundation expenditures to benefit
his son and grandsons. The Fire College Foundation spent over $4,000 for
appliances for his son’s home, and it paid a total of $7,800 for his grandsons’
tuition at private schools. Langston also approved the disbursement of $7,500, in
the guise of a “scholarship” to Gail Phillips, his secretary, as a gift for her
retirement. Nix testified that Langston told him to use the Fire College
Foundation money to purchase two motorcycles for their benefit and a trailer for
the motorcycles. [R. Vol. I, Doc. 114, p. 25–95.]
Procedural History
The Government filed a superseding indictment charging Langston with 26
counts of violating 18 U.S.C. § 666(a)(1)(A), theft of federal funds. Seventeen of
these counts charged Langston as an agent of the State of Alabama (Counts 5–12,
21–22, 25–27, 30–32, 36), seven counts charged him as an agent of the Poison
Center (Counts 13–19), and two counts charged him as an agent of both entities
(Counts 33–34). The Government also charged Langston with violations of the
federal mail and wire fraud statutes (Counts 1–3, 28), conspiracy under 18 U.S.C.
§ 371 (Counts 4, 20, 24, 29), money laundering conspiracy under 18 U.S.C. §
1956(h) (Counts 23, 35), conduct giving rise to criminal forfeiture under 18 U.S.C.
§ 981(a)(1)(C) and 28 U.S.C. § 2461(c) (Count 37), and conduct giving rise to
11
criminal forfeiture under 18 U.S.C. § 982(a)(1) (Count 38). Following trial, the
jury found Langston guilty on all counts. The district court sentenced Langston to
125 months’ imprisonment plus three years supervised release. Langston then
perfected this appeal.
II. ISSUES
1. Whether there is sufficient evidence to support the jury’s finding that
Langston was an agent of the State of Alabama or an agent of the Poison Center
for conviction under 18 U.S.C. § 666.
2. Whether the district court abused its discretion in declining to give
Langston’s proposed jury instruction on good faith reliance on the advice of
counsel.
3. Whether Langston’s sentence is substantively unreasonable.
III. DISCUSSION
A. Sufficiency of the evidence
1. Agent of the State
Langston contends that the § 666 convictions against him charging him as
an agent of the State of Alabama cannot stand because the Government failed to
produce sufficient evidence that he was an agent of the state. The Government
counters that it produced adequate evidence of Langston’s employment with the
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state and his role as Executive Director of the Fire College, from which the jury
reasonably concluded that Langston was an agent of the state as charged in the
indictment. We review de novo a challenge to the sufficiency of the evidence,
considering the evidence “in the light most favorable to the government and
resolv[ing] all reasonable inferences and credibility evaluations in favor of the
jury’s verdict.” United States v. Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007)
(internal quotation marks omitted).
First, we must decide the relevance of a defendant’s employment with a
state agency as evidence of the defendant’s agency of the state. The Government
charged Langston as an agent of the state, but the bulk of the evidence that it
presented at trial related to his role as Executive Director of the Fire College.
Langston argues that the statute, written in the disjunctive, requires the conviction
to relate to his agency relationship with a single entity. See 18 U.S.C. § 666(a)(1)
(criminalizing specific theft or bribery committed by “an agent of an organization,
or of a State, local, or Indian tribal government, or any agency thereof”) (emphasis
added). The Government contends that the evidence showed Langston to be both
an agent of the State and of the Fire College.
Nothing in the text of the statute prohibits the Government from charging a
defendant as an agent of the state and as an agent of a state agency. See United
13
States v. Pretty, 98 F.3d 1213, 1219 (10th Cir. 1996) (noting that defendant was
simultaneously an agent of the state and an agent of the state treasury). In fact,
numerous courts have recognized the dual agent status of a defendant under a §
666 charge. See, e.g., Pretty, 98 F.3d at 1219; United States v. Moeller, 987 F.2d
1134, 1138 (5th Cir. 1993) (defendants were agents of two state agencies–one that
controlled the other for which they actually worked); United States v. Madrzyk,
970 F. Supp. 642, 643–44 (N.D. Ill. 1997) (municipal code made city Alderman an
agent of both the city and the city council).
These cases reach the common-sense conclusion that an employee of an
agency entity cannot be an agent of the principal entity unless the legal construct
establishes such a relationship. For example, in Moeller, the Fifth Circuit
concluded that the defendants were agents of the Texas Department of Agriculture
(“TDA”) by virtue of their employment at the Texas Federal Inspection Service
(“TFIS”) because the TFIS was an arm of the TDA empowered to enforce its
regulations. 987 F.2d at 1138. The court inspected the cooperative agreement that
created the TFIS in reaching its conclusion that employees of the agency, TFIS,
were agents of the principal entity, TDA, because their conduct was directly
executed on behalf of the TDA. See id. Similarly in Madrzyk, the court held that
a city Alderman was an agent of both the city and the city council because the
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municipal code said exactly that. 970 F. Supp. at 643–44; see also Pretty, 98 F.3d
at 1219 (state law put deputy treasurer in charge of investing state funds,
authorizing her to act on behalf of both the state and its treasury).
These results are mandated by the language of the statute, which defines
“agent” as one who is “authorized to act on behalf of another person or a
government.” 18 U.S.C. § 666(d)(1). We must necessarily scrutinize that which
purports to create the employment relationship with the agency to determine if the
employee is authorized to act on the principal entity’s behalf. See United States v.
Sotomayor-Vazquez, 249 F.3d 1, 7–9 (1st Cir. 2001) (evidence showed that a
“consultant” actually acted in a managerial capacity of organization); United
States v. Phillips, 219 F.3d 404, 412–13 (5th Cir. 2000) (closely examining state
law to hold that a local tax assessor is not an agent of the parish).
Our task then is to determine whether the applicable law creating the
Executive Director’s employment with the Fire College also made the Executive
Director an agent of the state. Based upon our examination of the relevant state
law, we conclude that it does not. Alabama Code § 36-32-3 states that the
Executive Director serves “at the discretion of” the Fire College Commission.
Additionally, the Fire College Commission is empowered to set the Executive
Director’s salary. Rather than indicating that the Executive Director is somehow
15
empowered to act on behalf of the state, the state statute makes clear that the
Executive Director serves at the pleasure of the Fire College Commission. Unlike
a local ordinance or cooperative agreement that expressly creates a dual agency
relationship, Ala. Code § 36-32-3 establishes the Executive Director’s agency with
just one entity—the Fire College. Because Langston’s employment with the Fire
College does not authorize him to act on behalf of the state under the applicable
state law, evidence of his employment with the Fire College is not relevant to the
charges asserting that he acted as an agent of the state.
Next, we must determine whether the Government produced sufficient
relevant evidence at trial to allow a jury to conclude that Langston was an agent of
the state. We conclude that it did not. The Government did offer some evidence
of Langston’s agency relationship with the state independent of his employment
with the Fire College. The Government asserts that Langston’s salary was paid
from state funds and determined by a state salary schedule, and that he received
state employment benefits. It asserts that his power over state funds at the Fire
College demonstrates that he was authorized to act as an agent on the state’s
behalf.
Contrary to the Government’s contentions, the evidence it produced failed
to show that Langston was an agent of the state. The Fire College Commission set
16
Langston’s salary, Ala. Code § 36-32-3, subject to state schedules. Langston’s W-
2 forms listed the Fire College Commission as his employer, and his employment
contract was with the Fire College Commission. In Alabama, most state agency
employees receive state employment benefits, though they are not agents of the
state itself. See, e.g., Ala. Code § 16-25-1 – 140. The money that Langston
controlled was that of the Fire College, not of the state. Simply because it passed
through the state treasury to the state Education Trust Fund does not make it state
funds sufficient to demonstrate that Langston was an agent of the state.
Most of the evidence that the Government presented showed Langston’s
agency relationship with the Fire College. The remaining evidence was not
significant enough to allow a reasonable jury to conclude that Langston was an
agent of the state, independent of his relationship with the Fire College. Because
the Government chose to charge Langston as an agent of the state, instead of as an
agent of the Fire College and failed to produce sufficient evidence showing that
agency relationship, we vacate the convictions on those counts.
2. Agent of the Poison Center
Langston also argues that the Government did not present sufficient
evidence to demonstrate that he was an agent of the Poison Center, or that he was
an agent of both the Poison Center and the state. The record belies this argument.
17
There was sufficient evidence from which a reasonable jury could have concluded
that he was an agent of either entity. See Pretty, 98 F.3d at 1219 (stating that
Government can charge a defendant as an agent of the state and as an agent of a
state agency). Dr. Fisher, Poison Center Director, testified that his employment
contract was with the Fire College and the Fire College Commission, and that
Langston signed his employment contract. The employment contract stated that
Dr. Fisher worked at the will of the Fire College and the Fire College
Commission. Dr. Fisher considered Langston his “boss,” and he thought that
Langston had the authority to tell him how to write the Poison Center checks. He
acknowledged that the federal grant money and the state grant money were
together in the Poison Center bank account. Dr. Fisher stated that part of the
money that the Poison Center paid to the Fire College Foundation came from
federal funds that the Poison Center received from the United States Department
of Health and Human Services. [R. Vol. II, Doc. 115, p. 218–Vol. III, Doc. 116 p.
44.]
Based upon this evidence, plus the evidence that Langston directed Dr.
Fisher to put Nix on the Poison Center payroll as a consultant, although Nix
performed no consulting work for the Poison Center, a reasonable jury could find,
and did so find, that Langston was an agent of the Poison Center under 18 U.S.C.
18
§ 666, as charged in the indictment. Because the evidence is sufficient to establish
this element of the § 666 charge, and the Government charged Langston as both an
agent of the Poison Center and the state, we affirm the convictions on Counts
13–19, and 33–34.
B. Good-faith reliance on the advice of counsel as a defense
Langston argues that his convictions on Counts 1–3 should be reversed
because the district court failed to instruct the jury that his good faith reliance on
the advice of counsel was a defense to the charges involving the Fire College
Foundation’s purchase and furnishing of a home that Langston intended to use for
his personal residence. We review a district court’s ruling on a proposed jury
instruction for abuse of discretion. United States v. Condon, 132 F.3d 653, 656
(11th Cir. 1998).
“The defense of good faith reliance on expert advice is designed to refute
the government’s proof that the defendant intended to commit the offense.”
United States v. Johnson, 730 F.2d 683, 686 (11th Cir. 1984) (internal quotation
marks omitted). We have explained that a defendant is not entitled to a good faith
reliance instruction unless the record shows that “(1) he fully disclosed all material
facts to his attorney; and (2) he relied in good faith on advice given by his
attorney.” Condon, 132 F.3d at 656. After considering the testimony and
19
argument from Langston, the district court concluded that Langston did not fully
disclose to attorney Charles Hardin all the material facts relating to the Millbrook
house and that Langston did not rely on any legal opinion from Hardin before
buying and furnishing the house.
Based on our review of the record, we conclude that the district court did
not abuse its discretion in declining to give Langston’s proposed jury instruction
on good faith reliance. First, Langston did not disclose to Hardin any material
facts relating to the purchase of the house. When Hardin cast his vote as a board
member of the Fire College Foundation, he was not aware that Langston intended
to use the house as his personal residence nor was he aware that Langston was
spending the Fire College Foundation funds for purposes other than the stated
purposes of the Fire College Foundation. Hardin cast his vote believing that the
property purchase was a good investment for the Fire College Foundation.
Second, there was no evidence suggesting that Langston actually relied on any
legal opinion regarding the purchase of the Millbrook house. Langston had the
original idea to purchase a house and presented the idea to the Fire College
Foundation Board. Langston posed no questions to Hardin about the house
purchase until after the purchase was complete. In sum, the record shows only
that Hardin cast his vote during a board meeting as a board member, not
20
necessarily as the board’s legal counsel, and that he cast his vote without full
knowledge of the material facts relating to the house purchase. Accordingly, there
was no abuse of discretion.1
C. Langston’s Sentence
Langston challenges the substantive reasonableness of his sentence, arguing
that it was greater than necessary to achieve the objectives of sentencing because
of his age and poor health. We review a district court’s imposition of a sentence
for reasonableness. United States v. Booker, 543 U.S. 220, 264, 125 S. Ct. 738,
767 (2005). First, we must ensure that the district court committed no significant
procedural error, such as “failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.
586, 597 (2007). After we determine that the district court’s sentencing decision
is procedurally sound, we then review the substantive reasonableness of the
sentence for abuse of discretion. Id. Our reasonableness review is deferential,
requiring the court to determine “whether the sentence imposed by the district
court fails to achieve the purposes of sentencing as stated in section 3553(a).”
1
Furthermore, the district court instructed the jury that they must acquit Langston if there
was reasonable doubt as to whether he acted with an intent to defraud or in good faith based on an
honestly held belief or opinion. [R. Vol. VII, Doc. 120.]
21
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The burden is on the
party challenging the sentence to show that the sentence was unreasonable in light
of the record and the § 3553(a) factors. Id.
Pursuant to § 3553(a), the sentencing court shall impose a sentence
sufficient, but not greater than necessary, to reflect the seriousness of the offense,
promote respect for the law, provide just punishment for the offense, deter
criminal conduct, protect the public from future crimes of the defendant, and
provide the defendant with needed educational or vocational training. 18 U.S.C. §
3553(a)(2). The sentencing court should also consider the following factors in
determining a particular sentence: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the kinds of sentences
available; (3) the guideline range and the pertinent policy statements of the
Sentencing Commission; (4) the need to avoid unwarranted sentencing disparities,
and (5) the need to provide restitution to victims. Id. at (a)(1), (a)(3)–(7). “The
weight to be accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court, and we will not substitute our judgment in
weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th
Cir. 2007) (alterations and internal quotation marks omitted).
22
Langston does not assert that the district court committed any procedural
error in his sentencing. Rather, he contends that the district court’s imposition of
his sentence was substantively unreasonable. Specifically, he argues that, given
his age and health, his sentence was greater than necessary to achieve the purposes
of § 3553(a). However, the district court did consider these two factors and gave
Langston a downward variance, stating that his sentence would have been
significantly longer but for those factors. Essentially, Langston is asking this
court to reweigh these relevant factors. We do not reweigh relevant factors nor do
we remand for re-sentencing unless the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence outside the
range of reasonable sentences. Amedeo, 487 F.3d at 832. The district court did
not err in weighing the relevant factors, nor is Langston’s sentence outside the
reasonable range of sentences. The district court sentenced Langston to 125
months’ imprisonment, 43 months below the low-end guideline range. Langston
fails to show why his age and health justify a downward variance greater than 43
months, or how his below-range sentence is unreasonable in light of the record
and the § 3553(a) factors.
We also find unavailing Langston’s argument that his sentence creates an
unwarranted sentencing disparity. Langston compares his sentence to the sentence
23
of Robert Nix, who pled guilty to three counts. However, there is no comparison.
Unlike Langston, Nix cooperated with the Government’s investigation. Moreover,
the evidence showed that Langston was the leader and organizer of the public
corruption schemes. We have stated that there is no unwarranted disparity when a
cooperating defendant pleads guilty and receives a lesser sentence than a
defendant who proceeds to trial. United States v. Docampo, 573 F.3d 1091, 1101
(11th Cir. 2009); United States v. Williams, 526 F.3d 1312, 1323–24 (11th Cir.
2008). Therefore, any sentencing disparity was not unwarranted. Accordingly, we
conclude that Langston’s sentence was substantively reasonable; nevertheless, we
must vacate his sentence due to the fact that we are compelled to vacate some of
the § 666 convictions, as previously discussed in this opinion.2
IV. CONCLUSION
Because the Government erroneously indicted Langston as an agent of the
state and failed to produce sufficient evidence at trial to support such an agency
relationship, we vacate the § 666 convictions on Counts 5–12, 21–22, 25–27,
30–32, and 36 and remand to the district court for further proceedings. We affirm
the remaining counts of conviction. We also find no abuse of discretion in the
2
Although we vacate some of the counts of conviction and remand for re-sentencing by the
district court, we are aware that our ruling will likely not affect Langston’s term of imprisonment.
The only portion of Langston’s sentence that will be affected upon remand is the restitution amount.
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district court’s failure to give Langston’s proposed jury charge on good faith
reliance, and we conclude that Langston’s sentence was substantively reasonable.
Accordingly, we affirm in part, vacate in part and remand for further proceedings
consistent with this opinion.
AFFIRMED in part, VACATED in part, and REMANDED.
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