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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13054
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN M. ALFORD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:21-cr-00052-MCR-1
____________________
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2 Opinion of the Court 22-13054
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Stephen Alford appeals his sentence of 63 months’
imprisonment, imposed after he pleaded guilty to one count of
conspiracy to commit wire fraud. He argues that the district court
erred by imposing a 20-level offense enhancement based upon the
intended pecuniary loss amount of his offense because his victim did
not incur any actual pecuniary loss. After careful review, we
conclude that the district court’s error, if any, was harmless; thus,
we affirm Alford’s sentence.
I. Background
A federal grand jury returned a four-count superseding
indictment charging Alford with three counts of conspiracy to
commit wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (Counts
1 through 3), and one count of attempted prevention of seizure, in
violation of 18 U.S.C. § 2232(a) (Count 4). Alford pleaded guilty to
Count 3 in exchange for the government’s promise to dismiss the
remaining charges. The presentence investigation report (“PSI”)
detailed the offense conduct as follows.
In March 2021, Alford’s associate, Robert “Bob” Kent, text
messaged a former government official, “D.G.,” and offered to
assist him in stopping a federal criminal investigation into the
activities of a member his family, who was also a government
official. Kent informed D.G. that, in exchange for the assistance of
D.G. and his family member in obtaining the release of Robert
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22-13054 Opinion of the Court 3
Levinson 1 from Iran, Kent could assist in obtaining a pardon from
President Donald Trump for D.G.’s family member. Kent met
with D.G. in person and informed him that D.G. would need to
arrange for $25 million to be deposited into a trust account to
facilitate Levinson’s release. Kent reiterated to D.G. that his
partner, later identified as Alford, could make the investigation into
D.G.’s family member “go away.”
D.G. later met with Alford, who informed D.G. that he was
working with an attorney to raise funds for Levinson’s release.
Alford gave D.G. his business card during this meeting, which D.G.
later turned over to the Federal Bureau of Investigation (“FBI”). At
a subsequent meeting consensually recorded by the FBI, Alford
informed D.G. that he would need $15.5 million to execute the
plan to release Levinson (rather than $25 million, as Kent informed
D.G.) and that, once Levinson was released, Alford could arrange
for the investigation into D.G.’s family member to be dropped,
obtain a pardon, and keep D.G’s family member out of prison.
Alford memorialized that offer in a text message to D.G. after the
meeting.
Alford met with the FBI several days later, at which time he
confessed that he “made materially false promises in order to
1 Robert Levinson is a retired FBI agent who traveled to Iran on a business trip
and was reported missing in 2007. He is still missing. See FBI Washington, FBI
Washington Field Office Statement on the 16th Anniversary of the Abduction of Robert
A. Levinson, https://www.fbi.gov/contact-us/field-
offices/washingtondc/news/fbi-washington-field-office-statement-on-the-
16th-anniversary-of-the-abduction-of-robert-a-levinson (Mar. 9, 2023).
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4 Opinion of the Court 22-13054
defraud [D.G.] out of money.” Alford, once learning about a search
warrant obtained by the FBI for his phone, made false statements
to federal officials, evaded agents in a low-speed car chase, and
concealed the location of his phone. He eventually pleaded guilty
to one count of conspiracy to commit wire fraud.
The PSI calculated Alford’s base offense level under
§ 2B1.1(a)(1) of the United States Sentencing Guidelines
(“U.S.S.G.”) as seven and applied a twenty-level enhancement
because the offense involved an intended loss of $25 million,
pursuant to U.S.S.G. § 2B1.1(b)(1)(K).2 The PSI also applied (1) a
three-level adjustment, pursuant to U.S.S.G. § 3A1.2(a), because
the victim, D.G., was a former government officer and the offense
was motivated by the victim’s status; (2) a two-level adjustment,
pursuant to U.S.S.G. § 3C1.1, for obstruction of justice relating to
Alford’s false statements to the FBI, concealment of his phone, and
evasion of arrest; and (3) a total three-level decrease under U.S.S.G.
§ 3E1.1(a) and (b) for his timely acceptance of responsibility. After
2 Under § 2B1.1(b)(1), various enhancements are applied to the base offense
level “[i]f the loss [attributed to the defendant’s offense] exceeded $6,500[.]”
Where the loss is “[m]ore than $9,500,000” but less than or equal to
$25,000,000, the offense level is increased by 20. U.S.S.G. § 2B1.1(b)(1)(K)–(L).
The guidelines themselves do not define “loss,” but the guidelines’
commentary for § 2B1.1(b)(1) provides that “loss is the greater of actual loss
or intended loss,” defining “actual loss” as “the reasonably foreseeable
pecuniary harm that resulted from the offense,” and “intended loss” as “the
pecuniary harm that the defendant purposely sought to inflict . . . includ[ing]
intended pecuniary harm that would have been impossible or unlikely to
occur[.]” Id. § 2B1.1(b)(1), cmt. n.3.
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22-13054 Opinion of the Court 5
the adjustments, the PSI calculated Alford’s total offense level as
29.
The PSI calculated Alford’s criminal history score as nine,
with two additional points added pursuant to U.S.S.G. § 4A1.1(d)
because he committed the instant offense while under supervision
for various state fraud convictions from 2017, resulting in a total
criminal history score of 11 (in category V). Alford’s statutory
maximum term of imprisonment under Count 3 was 20 years,
pursuant to 18 U.S.C. §§ 1343 and 2, and his guideline
imprisonment range was 140 to 175 months’ imprisonment.
Alford filed several objections to the PSI, including that the
loss amount attributed to him in the PSI was erroneous because he
did not intend to cause any pecuniary harm and “loss” as used in
U.S.S.G. § 2B1.1(b)(1) did not support the commentary’s definition
of “intended loss.” The district court held an initial sentencing
hearing during which it stated that it would consider Alford’s
objection as to the commentary’s “intended loss” definition and
issue a separate written decision on the objection. The district
court’s written decision ultimately sustained Alford’s objection,
finding that the commentary’s definition of “intended loss” was not
entitled to any deference and concluding that “intended loss” fell
outside the scope of “loss” in the text of U.S.S.G. § 2B1.1(b)(1). The
government filed a motion for reconsideration.
The district court held a second sentencing hearing, at which
it stated that it would vacate its previous order sustaining Alford’s
objection:
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6 Opinion of the Court 22-13054
I’m not going to grant the [government’s] motion to
reconsider, but I’m going to vacate the order
[sustaining Alford’s objection], and here is why. [I
spent] a lot of time . . . reviewing . . . the evidentiary
record for this sentencing. And the sentence that I’m
going to impose today is going to be the same
sentence regardless of the guideline objection or
whichever guideline I use. . . . I’m going to apply the
guideline with the 20-level increase, and then I’m
going to vary. And again, likely I’m going to impose
the same sentence I would if the guideline objection
had been sustained.
After hearing argument on Alford’s other objections and
D.G.’s victim impact statement, the district court noted that,
having overruled his “intended loss objection,” Alford’s guidelines
range was 140 to 175 months’ imprisonment, whereas his
guidelines range would have been 21 to 27 months’ imprisonment
if his objection had been sustained. While the district court
emphasized Alford’s extensive criminal history and the
“reprehensib[ility]” of Alford’s fraudulent statements to D.G., it
also noted several mitigating factors, including that Alford was the
only individual charged, that the victim did not lose any money,
and that Alford seemed to believe in the operation to save
Levinson. The district court then imposed a 63-month term of
imprisonment, followed by period of 3 years’ supervised release,
stating that it based its decision on the factors provided in 18 U.S.C.
§ 3553(a), Alford’s personal history and characteristics, and the
seriousness and nature of the offense. The district court reiterated
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that the sentence imposed would have been the same, even if it had
not applied the 20-level offense enhancement, given Alford’s
criminal history. The district court dismissed the remaining counts
and adjudicated Alford guilty of Count 3.
Alford timely appealed his sentence.
II. Discussion
Alford argues that the district court erred when it overruled
his objection to the 20-level offense enhancement pursuant to
U.S.S.G. § 2B1.1(b)(1). After review of the briefs and record below,
we affirm Alford’s sentence. Because the district court stated that
Alford’s sentence would have been the same regardless of whether
the 20-level offense enhancement was applied, we review his
sentence for substantive reasonableness under our precedent in
United States v. Keene, 470 F.3d 1347, 1350 (11th Cir. 2006). And
because we conclude that Alford’s sentence was substantively
reasonable, we affirm his sentence.
We ordinarily review the district court’s interpretation and
application of the guidelines de novo. United States v. Tejas, 868 F.3d
1242, 1244 (11th Cir. 2017). However, we will not decide a
guidelines issue if it made no difference to the sentence imposed by
the district court and the ultimate sentence imposed was
reasonable. Keene, 470 F.3d at 1349–50. In other words, if the
district court states that the sentence would not have changed with
a different guidelines calculation, we assume that the district court
committed an error, calculate the guidelines range without that
error, and then analyze whether the imposed sentence would be
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8 Opinion of the Court 22-13054
substantively reasonable under the revised guidelines range. Id. at
1349. If it is substantively reasonable, then we will not address the
disputed guidelines issue because “it would make no sense to set
aside [a] reasonable sentence and send the case back to the district
court [if] it has already told us that it would impose exactly the
same sentence, a sentence we would be compelled to affirm.” Id.
at 1350. As the party challenging the sentence, it is the defendant’s
burden to prove the unreasonableness of his sentence considering
the record and 18 U.S.C. § 3553(a). See id.
We will vacate a sentence as substantively unreasonable
“only if we are left with the definite and firm conviction that the
district court committed a clear error of judgment in weighing the
§ 3553(a) factors” as evidenced by a sentence “that is outside the
range of reasonable sentences dictated by the facts of the case.”
United States v. Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020)
(quotation omitted). A district court abuses its discretion and
imposes a substantively unreasonable sentence only if it “(1) fails to
. . . consider[] relevant factors that were due significant weight;
(2) gives significant weight to an improper or irrelevant factor; or
(3) commits a clear error of judgment in considering the proper
factors.” United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th
Cir. 2015) (quotation omitted). “We do not presume that a
sentence outside the guideline range is unreasonable and must give
due deference to [a] district court’s decision that the § 3553(a)
factors, as a whole, justify the extent of [a] variance” above the
guidelines range. Goldman, 953 F.3d at 1222. One indicator of
reasonableness is whether the sentence falls “far below the
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22-13054 Opinion of the Court 9
statutory maximum penalty.” United States v. Osorto, 995 F.3d 801,
823 (11th Cir. 2021).
The district court, in imposing a sentence, must consider
several statutory factors under § 3553(a). Specifically, it must
impose a sentence that is “sufficient, but not greater than
necessary” to reflect the seriousness of the offense, promote
respect for the law, provide just punishment, afford adequate
deterrence, protect the public, and provide the defendant with any
needed correctional treatment or training. 18 U.S.C. § 3553(a)(2).
It must also consider the nature and circumstances of the offense,
the defendant’s history and characteristics, the kinds of sentences
available, the applicable guidelines range, any pertinent policy
statements, and the need to avoid sentencing disparities between
similarly situated defendants. Id. § 3553(a)(1), (3)–(7).
The district court is not required to state on the record
explicitly that it has considered each of the § 3553(a) factors nor
must it discuss each of them at sentencing. United States v. Kuhlman,
711 F.3d 1321, 1326 (11th Cir. 2013). “Rather, an acknowledgment
by the district [court] that [it] has considered the § 3553(a) factors
will suffice.” United States v. Turner, 474 F.3d 1265, 1281 (11th Cir.
2007). Additionally, “[w]e have taken a holistic approach in
evaluating the district court’s explanation of the sentence imposed”
such that “[o]ur review is not limited to the district court’s closing
remarks.” United States v. Ghertler, 605 F.3d 1256, 1263 (11th Cir.
2010).
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10 Opinion of the Court 22-13054
Where the district court varies from the guidelines range in
imposing a sentence, “the justification [for the variance must] be
sufficiently compelling to support the degree of the variance.”
United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en banc)
(quotation omitted). The weight given to any specific § 3553(a)
factor is “committed to the sound discretion of the district court.”
United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (quotation
omitted). Moreover, the district court is free to consider any
information relevant to a defendant’s background, character, or
conduct in imposing an upward variance. United States v. Tome, 611
F.3d 1371, 1379 (11th Cir. 2010).
Assuming, as we must under Keene, that the district court
committed an error in calculating Alford’s guidelines range, we
start by calculating his guidelines range without the assumed error.
470 F.3d at 1349. Had the district court sustained Alford’s objection
to the 20-level enhancement, his base offense level would have
been seven. Additionally, the offense level would have been
adjusted further: (1) a three-level increase because the victim, D.G.,
was a former government officer and Alford’s offense was
motivated by the victim’s status; (2) a two-level increase for
obstruction of justice; and (3) a total three-level decrease under for
Alford’s timely acceptance of responsibility. Thus, his total offense
level would have been nine. Based upon an offense level of nine
and a criminal history score of 11 (in category V), Alford’s
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22-13054 Opinion of the Court 11
guidelines advisory range of imprisonment would have been 18 to
24 months’ imprisonment. 3 U.S.S.G. Ch. 5, Pt. A.
Alford has not demonstrated that his sentence of 63 months’
imprisonment is substantively unreasonable.4 After review of the
record below, we are not left with “a definite and firm conviction”
that Alford’s sentence is substantively unreasonable. Goldman,
953 F.3d at 1222. There is no indication that the district court
(1) failed to consider relevant factors that were due significant
weight; (2) gave significant weight to an improper or irrelevant
3 The district court incorrectly used a base offense level of ten, rather than
nine, when calculating Alford’s guidelines range of imprisonment at the
second sentencing hearing. For purposes of this appeal, however, the district
court’s misstatement is not material, as we are obligated to calculate the
correct guidelines range, irrespective of any error committed by the district
court.
4 In fact, Alford does not put forth any argument whatsoever regarding the
substantive reasonableness (or lack thereof) in his briefing, instead arguing
that we should reach the merits of his “intended loss” objection. Alford argues
that even though “the district court [stated that it] would not impose a
different sentence on remand,” we should “exercise [our] discretion to rule
on” the merits of his objection because it “is a matter of pressing concern for
the bench and bar.” He, however, ignores Keene, which applies directly to
cases such as this, where the district court expressly stated that it would have
imposed the same sentence, irrespective of the guidelines calculation. 470
F.3d at 1349. See, e.g., United States v. Henry, 1 F.4th 1315, 1326 (11th Cir. 2021),
cert. denied, 142 S. Ct. 814 (2022) (citing Keene and stating that, while “[t]he
parties dispute[d] how” a certain section of the U.S.S.G. “should have been
applied[,] . . . it [was] not necessary for this Court to decide th[at] issue or
remand for new proceedings because even if there was a [g]uidelines error, it
did not affect [the defendant’s] sentence”).
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12 Opinion of the Court 22-13054
factor; or (3) committed a clear error of judgment in considering
the proper factors. Rosales-Bruno, 789 F.3d at 1256. Rather, the
district court stated that it considered the statutory factors under
§ 3553(a) in determining Alford’s sentence, particularly his
extensive criminal history and the “reprehensible” nature of his
fraudulent statements to D.G. Based upon those considerations,
the district court stated that the record supported a term of
imprisonment that exceeded two years, but also that the record did
not support a term of imprisonment that reached the statutory
maximum of twenty years, given various mitigating factors. The
district court is entitled to give more weight to any one or number
of the § 3553(a) factors. Clay, 483 F.3d at 743. The 63-month
sentence falls within the range of permissible sentences. The
record reflects that while no money changed hands and no
additional individuals involved in the scheme were charged, Alford
made admittedly false, fraudulent, and “reprehensible” statements
to D.G. that implicated not only D.G.’s family but also the family
of Mr. Levinson. And while the district court’s sentence represents
an upward variance from the revised guidelines range of 18 to 24
months’ imprisonment to a term of imprisonment of 63 months,
such a variance is significantly lower than the statutory maximum
of 20 years’ imprisonment and falls well within the permissible
range of sentences on this record. See Osorto, 995 F.3d at 823. For
these reasons, the sentence imposed by the district court was
substantively reasonable. See Keene, 470 F.3d at 1350.
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III. Conclusion
Assuming under Keene, 470 F.3d at 1350, that the district
court erred in applying the 20-level offense enhancement, any error
was harmless because the district court still would have sentenced
Alford to a substantively reasonable term of 63 months’
imprisonment. We therefore affirm Alford’s sentence.
AFFIRMED.
United States v. Stephen M. Alford
Combined Opinion