United States v. Isaac Grossman

USCA11 Case: 22-10505    Document: 39-1      Date Filed: 04/11/2023   Page: 1 of 12




                                                    [DO NOT PUBLISH]
                                    In the
                 United States Court of Appeals
                         For the Eleventh Circuit

                           ____________________

                                 No. 22-10505
                           Non-Argument Calendar
                           ____________________

        UNITED STATES OF AMERICA,
                                                       Plaintiff-Appellee,
        versus
        ISAAC GROSSMAN,


                                                    Defendant-Appellant.


                           ____________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                    D.C. Docket No. 0:19-cr-60300-AHS-1
                           ____________________
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        2                     Opinion of the Court                22-10505


        Before JORDAN, BRANCH, and MARCUS, Circuit Judges.
        PER CURIAM:
                Isaac Grossman appeals his total sentence of 87 months’ im-
        prisonment for mail fraud, wire fraud, and money laundering. Ac-
        cording to the presentence investigation report (“PSI”), Gross-
        man’s convictions stemmed from a scheme in which he solicited
        potential investors to invest in a company he owned called
        Dragon‑Click Corp. Grossman told them that he was a successful
        entrepreneur, investor, and hedge fund manager and that
        Dragon‑Click was developing an app that would revolutionize
        online shopping. He explained that their money would be used for
        product development, patent applications, or facilitation of a sale
        to a larger tech company and that he would double, triple, or quad-
        ruple their investment by selling Dragon‑Click for over $1 billion.
        In reality, however, Grossman did not use their money for any le-
        gitimate business purposes, and instead, spent at least $1,300,000
        on gambling, diamond jewelry, luxury cars, his home mortgage,
        and his children’s private education. About 26 total victims, most
        of whom were elderly retirees, invested a total of $2,400,000 in
        Dragon‑Click. After Grossman pled guilty, the district court im-
        posed an 87‑month sentence, at the low end of the advisory guide-
        line range.
               On appeal, Grossman argues that the district court erred in
        imposing a sentencing enhancement for vulnerable victims, deny-
        ing a downward variance by giving significant weight to improper
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        22-10505               Opinion of the Court                         3

        or irrelevant factors, failing to afford due consideration to his per-
        sonal circumstances in favor of the nature of the offense and the
        victim impact, and including a special condition of supervision that
        was not imposed at sentencing. After thorough review, we affirm.
                                          I.
               We review the sentence a district court imposes for “reason-
        ableness,” which “merely asks whether the trial court abused its
        discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.
        2008) (quotations omitted). “The application of the vulnerable-vic-
        tim [enhancement] is a mixed question of law and fact that [we]
        review[] de novo.” United States v. Mathews, 874 F.3d 698, 706 n.4
        (11th Cir. 2017).
               “The doctrine of invited error is implicated when a party in-
        duces or invites the district court into making an error. Where in-
        vited error exists, it precludes a court from invoking the plain error
        rule and reversing.” United States v. Love, 449 F.3d 1154, 1157
        (11th Cir. 2006) (quotations and citation omitted); United States v.
        Carpenter, 803 F.3d 1224, 1236–37 (11th Cir. 2015). Simply “failing
        to object does not trigger the doctrine of invited error.” United
        States v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012).
               Rather, when a party fails to make specific objections at sen-
        tencing after the district court gives him an opportunity to do so,
        challenges to the sentence on appeal will be reviewed only for plain
        error. United States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir.
        2014); see also United States v. Cavallo, 790 F.3d 1202, 1237 (11th
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        4                       Opinion of the Court                  22-10505

        Cir. 2015) (reviewing for plain error a defendant’s claim, not raised
        in district court, that the court impermissibly considered his sex
        when sentencing him). To establish plain error, a defendant must
        show (1) an error, (2) that is plain, and (3) that affected his substan-
        tial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.
        2007). If the defendant satisfies these conditions, we may exercise
        our discretion to recognize the error only if it seriously affects the
        fairness, integrity, or public reputation of judicial proceedings. Id.
                “An error is ‘plain’ if controlling precedent from the Su-
        preme Court or the Eleventh Circuit establishes that an error has
        occurred.” Ramirez-Flores, 743 F.3d at 822. To satisfy the third
        condition, the defendant ordinarily must show a reasonable prob-
        ability that, but for the error, the outcome of the proceeding would
        have been different. Rosales-Mireles v. United States, 138 S. Ct.
        1897, 1904–05 (2018). If we would have to speculate as to whether
        the result would have been different, the defendant has not met the
        burden to show that substantial rights have been affected. United
        States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005).
                                          II.
               First, we are unpersuaded by Grossman’s claim that his 87-
        month sentence was unreasonable. In reviewing sentences for rea-
        sonableness, we perform two steps. Pugh, 515 F.3d at 1190. First,
        we “‘ensure that the district court committed no significant proce-
        dural error, such as failing to calculate (or improperly calculating)
        the Guidelines range, treating the Guidelines as mandatory, failing
        to consider the § 3553(a) factors, selecting a sentence based on
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        22-10505                    Opinion of the Court                                 5

        clearly erroneous facts, or failing to adequately explain the chosen
        sentence -- including an explanation for any deviation from the
        Guidelines range.’” Id. (quoting Gall v. United States, 552 U.S. 38,
        51 (2007)). 1 The district court is not required to expressly say that
        it has considered each of the 18 U.S.C. § 3553(a) factors, so long as
        the record reflects the court’s consideration of the § 3553(a) factors.
        United States v. Cabezas-Montano, 949 F.3d 567, 609 (11th Cir.
        2020). So, an acknowledgment by the district court that it consid-
        ered the § 3553(a) factors is sufficient. Turner, 474 F.3d at 1281.
        Further, a failure to discuss mitigating evidence does not indicate
        that the court “erroneously ‘ignored’ or failed to consider this evi-
        dence.” United States v. Amedeo, 487 F.3d 823, 833 (11th Cir.
        2007). “[T]he adequacy of a district court’s findings and sentence
        explanation is a classic procedural issue, not a substantive one.”
        United States v. Irey, 612 F.3d 1160, 1194 (11th Cir. 2010) (en banc).
              If we conclude that the district court did not procedurally
        err, we consider the “substantive reasonableness of the sentence


        1        The § 3553(a) factors include: (1) the nature and circumstances of the
        offense and the history and characteristics of the defendant; (2) the need for
        the sentence imposed to reflect the seriousness of the offense, to promote re-
        spect for the law, and to provide just punishment for the offense; (3) the need
        for the sentence imposed to afford adequate deterrence; (4) the need to protect
        the public; (5) the need to provide the defendant with educational or voca-
        tional training or medical care; (6) the kinds of sentences available; (7) the Sen-
        tencing Guidelines range; (8) the pertinent policy statements of the Sentencing
        Commission; (9) the need to avoid unwarranted sentencing disparities; and
        (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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        6                      Opinion of the Court                 22-10505

        imposed under an abuse-of-discretion standard,” based on the “to-
        tality of the circumstances.” Pugh, 515 F.3d at 1190 (quotations
        omitted). A court may abuse its discretion if it (1) fails to consider
        relevant factors that are due significant weight, (2) gives an im-
        proper or irrelevant factor significant weight, or (3) commits a clear
        error of judgment by balancing a proper factor unreasonably. Irey,
        612 F.3d at 1189. Also, a court’s unjustified reliance on any one §
        3553(a) factor may be a symptom of an unreasonable sentence.
        United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006).
                However, we have “underscored” that we must give “due
        deference” to the district court to consider and weigh the proper
        sentencing factors. United States v. Shabazz, 887 F.3d 1204, 1224
        (11th Cir. 2018) (quotations omitted). The district court need not
        give all the factors equal weight and is given discretion to attach
        great weight to one factor over another. United States v.
        Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). Further,
        “[s]entencing courts may consider both uncharged and acquitted
        conduct in determining the appropriate sentence.” United States
        v. Maitre, 898 F.3d 1151, 1160 n.6 (11th Cir. 2018) (quotations omit-
        ted); see also United States v. Butler, 39 F.4th 1349, 1355 (11th Cir.
        2022) (stating that “a sentencing court may impose an upward var-
        iance based upon uncharged conduct”).
               We will vacate a sentence only if we are “left with the defi-
        nite and firm conviction that the district court committed a clear
        error of judgment in weighing the § 3553(a) factors by arriving at a
        sentence that lies outside the range of reasonable sentences
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        22-10505               Opinion of the Court                         7

        dictated by the facts of the case.” Irey, 612 F.3d at 1190 (quotations
        omitted). “[A] district court commits a clear error of judgment
        when it considers the proper factors but balances them unreasona-
        bly.” Id. at 1189. We will not substitute our own judgment for that
        of the sentencing court and will sometimes affirm the district court
        even if we would have done something differently because the
        question is whether the district court’s decision was “in the ballpark
        of permissible outcomes.” Butler, 39 F.4th at 1355 (quotations
        omitted). Sentencing judges may rely on their experience and are
        given wide latitude in sentencing decisions because of their experi-
        ence in handling criminal cases. United States v. Shaw, 560 F.3d
        1230, 1238–40 (11th Cir. 2009) (upholding an upward variance
        where the defendant argued that his sentenced was influenced by
        an erroneous premise or prediction).
                We do not apply a presumption of reasonableness to sen-
        tences within the guideline range, but we ordinarily expect these
        sentences to be reasonable. United States v. Stanley, 739 F.3d 633,
        656 (11th Cir. 2014). A sentence imposed well below the statutory
        maximum penalty is also an indicator of reasonableness. Id. The
        party challenging the sentence bears the burden of establishing that
        it is unreasonable based on the record and the § 3553(a) factors.
        United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
               Here, Grossman has not shown that his sentence was proce-
        durally or substantively unreasonable. For starters, Grossman
        claims on appeal that the district court erred at sentencing by ap-
        plying a four-level enhancement for vulnerable victims, but
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        8                         Opinion of the Court                     22-10505

        Grossman invited this alleged error in the district court. As the rec-
        ord reflects, the plea agreement provided that Grossman “should
        receive a four-level increase for committing offenses which the De-
        fendant knew involved a large number of vulnerable victims.”
        When Grossman pled guilty at the plea colloquy, he expressly con-
        firmed that he had “read and underst[oo]d” the plea agreement and
        “treat[ed] it like a contract.” Thereafter, the vulnerable victim en-
        hancement was detailed in Grossman’s PSI, which provided that
        “[t]he government and defendant agreed that . . . they will jointly
        recommend . . . that the defendant should receive a four-level in-
        crease for committing offenses which the defendant knew involved
        a large number of vulnerable victims.” Then, at sentencing, the
        district court went through the PSI and described the sentencing
        enhancements, breaking down the four-level increase at issue in
        this way: “[a] victim-related adjustment[,] increase[] two levels
        [and] a large number of vulnerable victims, increase two levels.” 2
        When the court asked if Grossman was “in agreement” with these
        enhancements, defense counsel answered that he was, and, not sur-
        prisingly, he never lodged any objection to these enhancements at
        the plea colloquy or at sentencing.
              On this record, Grossman invited any error concerning the
        adjustment. See Love, 449 F.3d at 1157; Carpenter, 803 F.3d at

        2 The Guidelines break down the enhancement in the same way. See U.S.S.G.
        § 3A1.1(b) (increasing a defendant’s offense level by two levels if he knew or
        should have known that a victim of his offense was vulnerable and by two
        more levels if “the offense involved a large number of vulnerable victims”).
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        22-10505                 Opinion of the Court                             9

        1236–37. Further, Grossman cites no support for the argument he
        now makes in his reply brief, that the invited error rule should not
        apply because he did not fully comprehend that there was ambigu-
        ity in the plea agreement -- a plea agreement that expressly pro-
        vided for a four-level vulnerable victim enhancement. As we see
        it, Grossman invited any error concerning the vulnerable victim
        adjustment so we do not reach the merits of the issue. Id.
               As for Grossman’s claim that the district court abused its dis-
        cretion in denying a downward variance by giving significant
        weight to improper or irrelevant factors, we disagree. As the rec-
        ord reveals, Grossman did not object to his sentence at trial, so we
        review whether the district court relied on any allegedly improper
        factors for plain error, and we can find none. See Cavallo, 790 F.3d
        at 1237. 3 To begin with, under our precedent, the district court
        was authorized to consider Grossman’s conduct related to 17
        counts of conviction that the government had dismissed. See
        Maitre, 898 F.3d at 1160 n.6.; Butler, 39 F.4th at 1355. And while
        the parties agree that the court misstated how the dismissed counts
        affected the guideline range, nothing in the record suggests that the
        court believed that Grossman’s guideline range was unduly low.
        On the contrary, the court imposed a sentence at the bottom of the


        3 Notably, the Supreme Court has expressly declined to address whether spe-
        cific substantive reasonableness challenges must be raised below to be pre-
        served. Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020).
        Therefore, we are bound by our precedent, as applied in Cavallo, that we re-
        view these kinds of unpreserved arguments for plain error. 790 F.3d at 1237.
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        10                     Opinion of the Court                 22-10505

        guideline range, not above it. Further, while the court praised
        Grossman’s counsel for obtaining an acceptance-of-responsibility
        reduction, it never indicated that the reduction was unwarranted.
                In any event, it is utterly unclear from the record whether
        the dismissed counts and the acceptance-of-responsibility adjust-
        ment affected the imposed sentence, if at all. This means that we
        are left to speculate as to whether Grossman’s sentence would have
        been different had the court not mentioned these factors. For this
        reason, Grossman has not met his burden to show that his substan-
        tial rights were affected, and the district court did not plainly err.
        See Rosales-Mireles, 138 S. Ct. at 1904; Rodriguez, 406 F.3d at 1275.
                We are also unpersuaded by Grossman’s claim that the dis-
        trict court erred in weighing the context and nature of the offense
        and the victim impact more heavily than Grossman’s personal cir-
        cumstances. As our case law makes clear, it was well within the
        court’s discretion to attach great weight to one factor over another.
        See Rosales-Bruno, 789 F.3d at 1254. Further, the court expressly
        said that it had considered the § 3553(a) factors and the parties’
        statements, and Grossman’s counsel extensively covered his per-
        sonal circumstances. See Taylor, 997 F.3d at 1354–55. Plus, it’s
        worth noting that the 87‑month sentence imposed by the court
        was within, and at the bottom of, the advisory guideline range of
        87 to 108 months and was 33 months below the lowest statutory
        maximum, both favoring the sentence’s reasonableness. See Stan-
        ley, 739 F.3d at 656; Rosales-Bruno, 789 F.3d at 1256‑57.
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        22-10505               Opinion of the Court                        11

                Moreover, we cannot say that the district court erred by
        commenting on the victims’ status or suffering; we’ve said that dis-
        trict courts are permitted to rely on their experience at sentencing.
        See Shaw, 560 F.3d at 1238. And as for his claim that the court
        improperly compared Grossman’s sentence to an acquaintance’s
        bank robbery sentence, the record instead suggests that the court
        mentioned this case simply to show that Grossman would still have
        an opportunity to work and be successful after he served his sen-
        tence. Accordingly, Grossman has not shown that his sentence was
        unreasonable, and we affirm as to this issue.
                                         III.
               We also are unpersuaded by Grossman’s claim that a special
        condition of supervised release in the written judgment did not
        conform with the judgment orally pronounced during the sentenc-
        ing hearing. It is well-established that “[w]hen a sentence pro-
        nounced orally and unambiguously conflicts with the written order
        of judgment, the oral pronouncement governs.” United States v.
        Bates, 213 F.3d 1336, 1340 (11th Cir. 2000). However, “[w]hen
        there is an ambiguity in the oral sentencing, as opposed to a conflict
        between the oral pronouncement and the written judgment, it is
        proper to look to the written judgment to ascertain the court’s in-
        tentions.” United States v. Purcell, 715 F.2d 561, 563 (11th Cir.
        1983). The remedy for a conflict between an orally pronounced
        sentence and the written judgment is a limited remand with in-
        structions to amend the judgment to conform to the oral
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        12                    Opinion of the Court                22-10505

        pronouncement. United States v. Chavez, 204 F.3d 1305, 1316
        (11th Cir. 2000).
                Here, Grossman does not specify which language from the
        written judgment he wants the district court to strike, but simply
        says that the judgment “contains” a condition that was not imposed
        during the sentencing and that “[t]he condition requiring Gross-
        man to obtain permission before seeking or incurring new debt”
        should be stricken. But there is no support for this claim. Indeed,
        at sentencing, the court expressly imposed this condition when it
        said that Grossman must comply with a list of special conditions,
        including “no new debt restrictions.” And to the extent Grossman
        is arguing with the language that he must “first obtain[] written
        permission” before seeking or incurring new debt, if anything, this
        is less restrictive than the court’s words at sentencing because it
        adds the possibility of obtaining new debt with permission. Thus,
        because Grossman has failed to demonstrate any actual conflict be-
        tween the oral sentencing and the written judgment that would
        warrant relief, we affirm as to this issue as well.
              AFFIRMED.