[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15701
June 6, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-60114-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LESMARGE VALNOR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 6, 2006)
Before DUBINA, HULL and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
Lesmarge Valnor appeals his 28-month sentence, which was imposed after
he pled guilty to conspiracy to produce identification documents without lawful
authority, in violation of 18 U.S.C. § 1028(f). On appeal, Valnor argues that the
district court imposed an unreasonable sentence, because the district court
improvidently applied the factors embodied in Title 18, section 3553(a) of the
United States Code, and enhanced his sentence well above the advisory Guidelines
range, on grounds of national security. After careful review, we affirm.
I.
These are the relevant facts. On May 28, 2005, Valnor was indicted for
conspiracy to produce identification documents without lawful authority, in
violation of 18 U.S.C. §§ 1028(a)(1), (b)(1)(A), (c)(3)(A), and (f) (Count 1), and
aiding and abetting in the production of an identification document, in violation of
18 U.S.C. §§ 2 and 1028(a)(1) (Count 2). After initially pleading not guilty to the
charges, Valnor agreed to plead to Count 1, pursuant to a written plea agreement.
As part of the agreement, Valnor agreed to cooperate fully with the government.1
1
The plea agreement also contained a general sentence-appeal waiver, whereby Valnor
waived his right to appeal the sentence, including on the ground that the district court erred in
calculating the Guidelines range, except for a sentence above the statutory maximum or a sentence
that “is the result of an upward departure from the guideline range that the court establishes at
sentencing.” In its brief, the government urges that the district court correctly calculated the
Guidelines range and imposed an “upward variance” based on the 18 U.S.C. § 3553(a) factors, rather
than an upward departure under the Guidelines. Cf. United States v. Eldick, 443 F.3d 783, 788 n.2
(11th Cir. 2006) (noting that district court’s decision to impose sentence above the Guidelines range
did not constitute an upward departure, but rather was an exercise of its discretion since (1) “the
court did not cite to a specific guidelines departure provision,” and (2) the district judge stated that
“the guidelines did ‘not adequately take into account the severity of the damage done by Mr. Eldick,
and, therefore, I find that they should not be applied.’”). However, the government has not filed a
motion to dismiss this appeal, nor does it argue that dismissal is warranted because of the waiver.
We will address the merits of Valnor’s claim, rather than dismissing the appeal based on the waiver,
because the appellee does not seek application of the waiver, has already expended the resources to
brief the case on the merits, and application of the waiver is not outcome-determinative.
2
In exchange for Valnor’s guilty plea, the government agreed to (1) seek
dismissal of Count 2 after sentencing; (2) recommend that Valnor receive a
reduction in his offense level for acceptance of responsibility, pursuant to U.S.S.G.
§ 3E1.1; (3) recommend that Valnor be sentenced at the low end of the Guidelines
range determined by the court; (4) evaluate whether Valnor provided substantial
assistance warranting a motion for downward departure from the advisory
Guidelines range pursuant to either U.S.S.G. § 5K1.1 or Fed. R. Crim. P. 35; and
(5) jointly recommend with Valnor “that the court impose a sentence within the
advisory sentencing guideline range . . . [and] except as otherwise expressly
contemplated . . . neither depart upward nor depart downward under the Sentencing
Guidelines when determining the advisory sentencing guideline range in this case.”
According to the presentence investigation report (“PSI”), an investigation
by the Department of Homeland Security, Immigration and Customs Enforcement
(“ICE”) revealed evidence of a scheme involving the issuance of fraudulent
driver’s licenses to illegal immigrants in the South Florida area. The subject
fraudulent licenses actually were issued by Derene Fraser, a Florida Department of
Motor Vehicles (“DMV”) License Examiner who worked in DMV offices in
Broward and Miami-Dade Counties from 1999 through November 18, 2003. The
3
investigation ultimately led to the arrest of several suspects, including the
defendant Valnor, Fraser, and Daniel Bharath.
Bharath was arrested on March 30, 2005, after being found in Broward
County in possession of a fraudulent commercial driver’s license, which had been
issued by Fraser on December 4, 2002. Following his arrest, Bharath stated that in
late 2002, he had attempted to obtain a driver’s license, which he needed to work
as a truck driver, but was unsuccessful because he did not have a green card.
Bharath subsequently met an individual outside a DMV office near Oakland Park
Boulevard in Broward County. Bharath knew the individual as “Lamaz” --
“Lamaz” subsequently was identified as Lesmarge Valnor. Valnor indicated that
he could get Bharath a license for $2,000. On a later date, Bharath gave Valnor
$2,000 outside of the DMV. Valnor took the money and an expired New York
driver’s license, issued in Bharath’s name, and entered the DMV. Valnor
subsequently came back and told Bharath to go inside and wait to be called. Inside
the DMV, Fraser issued Bharath his commercial driver’s license. About two
weeks later, Bharath paid Valnor between $400 and $600 for a fake green card.
On April 7, 2005, ICE special agents arrested Fraser who, at the time of her
arrest, provided more information regarding her involvement with Valnor in
issuing driver’s licenses to individuals who could not legally obtain them. Fraser
4
said that, between about March or April 2003 and October 2003, she issued
approximately 30 fraudulent driver’s licenses on behalf of an individual she knew
as “Lesmarges,” later identified as the defendant Valnor.
On April 27, 2005, Valnor was arrested. Following his arrest, Valnor stated
that people who needed driver’s licenses, but did not have proper immigration
documents, would come to him for help. He said that he charged between $400
and $500 per license, and that of this amount, he paid Fraser between $250 and
$300. Valnor indicated that there were other people working with Fraser to obtain
fraudulent driver’s licenses for illegal immigrants. He also admitted that he helped
10 people obtain their licenses illegally through Fraser, and that he knew these
people would not be able to obtain a license without his (and Fraser’s) assistance.
In connection with the preparation of the PSI, and for purposes of accepting
responsibility, Valnor subsequently admitted that he helped approximately 15 to 25
people obtain driver’s licenses in the above-described manner.
The PSI recommended a base offense level of 11, pursuant to U.S.S.G.
§ 2L2.1(a), and, based on the government’s recommendation and Fraser’s post-
arrest statement, both of which indicated that Valnor was responsible for
approximately 30 fraudulent licenses, a 6-level increase pursuant to
§ 2L2.1(b)(2)(B). After a 3-level reduction for acceptance of responsibility,
5
U.S.S.G. § 3E1.1, Valnor’s adjusted offense level was 14. With a criminal history
category I, Valnor faced an advisory Guidelines sentencing range of 15 to 21
months’ imprisonment. The statutory maximum for his offense was 15 years,
pursuant to 18 U.S.C. § 1028(b)(1)(A). The PSI noted that because Valnor agreed
to cooperate, a substantial-assistance departure would be filed by the government
pursuant to U.S.S.G. § 5K1.1.
Prior to the sentencing hearing, Valnor raised one objection to the PSI,
arguing that he should have received only a 3-level, rather than 6-level,
enhancement under U.S.S.G. § 2L2.1(b)(2), because his offense involved between
15 and 25 documents rather than 30 documents. Valnor subsequently withdrew
this objection at the sentencing hearing. Accordingly, at the start of the sentencing
hearing, the district court found that “the advisory Guideline range that is
applicable is 15 to 21 months.”
The government then moved for a downward departure, pursuant to
U.S.S.G. § 5K1.1, based on Valnor’s substantial assistance, which the government
detailed for the court. The government indicated that the “first wave” of the
investigation of the South Florida DMV offices led to the arrest of 52 people,
including DMV license examiners, middlemen acting as license brokers (such as
Valnor), and others who provided additional false documents such as social
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security cards and Form I-94 immigration documents to illegal aliens. According
to the government, its investigation at the DMV was ongoing and it had uncovered
“widespread corruption.”
After the government detailed Valnor’s cooperation and assistance, the
district court addressed defense counsel:
I know that the advisory Guideline range at this point is 15 to 21
months, but even had you prevailed on your objection [to the 6-level
upward adjustment under 2L2.1(b)(2) based on the number of
documents attributable to Valnor] the Guideline range would have
been 10 to 16 months. And it is the position of the court that either
range, 15 to 21 or 10 to 16, would be wholly inadequate as far as a
sentence goes for this type of a crime.
In other words, the court is considering an upward departure
because of the type of crime involved, especially since 9/11. One of
the first lines of national defense is identification. . . . Once a person
obtains identification documents, that individual is then able to pass
through the gateway of security, if you will, and then into the society.
Once an individual has fake identification, that individual is
then able to obtain other documents by use of the fake identification,
other documents that the individual would not otherwise be entitled to
have.
So I consider this a very, very serious crime, far greater than
either Guideline range, 10 to 16 months or 15 to 21, and I want to give
you an opportunity to try to persuade me why I should not depart
upward.
If you think you need some additional time, if you want the
weekend to think about this, I can bring everyone back here next
week. But I leave it up to you as to whether or not you wish to
respond at this point in time.
7
In response, defense counsel argued that Valnor’s conduct was
distinguishable from the conduct affecting national security discussed by the
district court, because Valnor “was assisting people who previously had valid
driver’s licenses, who were already in the country[, a]nd but for the changes that
occurred to the immigration laws subsequent to 9/11 were no longer able to renew
their licenses.” Valnor admitted, however, that the individuals he had helped
obtain driver’s licenses were not entitled to get those licenses. Upon further
questioning by the district judge, the government described Valnor’s primary
offense conduct as obtaining license renewals for people who previously had valid
licenses, but who could no longer renew those licenses because their immigration
status had expired. Thus, it was undisputed that Valnor renewed licenses for
people who were not entitled to those renewals.
The district court questioned how Valnor could distinguish between
someone who previously was in the country legally and a person who never had a
legal basis for being in the United States. The government responded that the only
way Valnor would know is if he was presented with a valid, expired driver’s
license. But even in that case, the district court observed, Valnor had no way of
discerning whether a person was legally authorized to be in this country at the time
of the illegal and fraudulent license renewal.
8
Thereafter, the district court commented, “I think this is a very serious
offense. I do not diminish it to the extent that [defense counsel] does, and even to
the extent that the government does.” The court then continued the sentencing
hearing in order to “think about everything that has been discussed . . . before I
make a decision on this inclination to impose a sentence that would be higher than
the high end of the advisory guideline range. That is before we get to the
government’s [5K1.1] motion, but I have to have a starting point.”
At a second sentencing hearing, which was held four days after the first, the
district court indicated that it had
been struggling with this issue of the adequacy, the sufficiency of the
advisory guideline range as a sufficient starting point. And I refer to it
as a starting point because the government has filed a . . . [5K1.1]
motion for a departure. So we’ve got to have a starting point, and
then the Court considers departing from that starting point.
And . . . it’s that starting point I’ve been struggling with.
The district judge again continued the sentencing hearing because he was “not yet
at a point where [he could] articulate a starting point.”
About two weeks later, at the final sentencing hearing, the district judge
announced his decision:
Today, driver’s licenses are far more than simply an
authorization to operate a motor vehicle. They serve as the primary
means of personal identification, particularly in the absence of a
national identification card, and are the first line of defense in national
security after 9/11. With a driver’s license a person is able to access
9
and integrate into society with the ability, among others, to obtain
other documents that he or she would otherwise be unable to acquire.
In light of our present security situation, it is of paramount importance
that the issuance and distribution of state issued driver’s licenses be
secured.
When individuals such as Mr. Valnor breach that security while
lining their pockets, and illegally obtain and distribute driver’s
licenses to individuals not legally entitled to them, there is cause for
great concern for the security of our nation and its citizenry. In light
of the egregious nature of the offense, the Court has carefully
considered the factors set forth in Title 18 Section 3553(a)(1) through
and including (7) of the United States Code in imposing sentence in
this case.
The Court finds, as previously stated, that Mr. Valnor’s offense
is serious, because his actions impact national security by placing this
vital piece of identification into the hands of persons whom Congress
and the Florida legislature specifically intended to exclude. Indeed,
the fact that he only sold the licenses to those who were able to have
them before the post September 11 rule changes, but subsequently
were not, only goes to show that he was selling these licenses to
exactly the people Congress intended to subject to greater regulation
for the purpose of our national security.
While the Court recognizes that Mr. Valnor was not working
inside the Florida [DMV], the Court finds that he poses a greater
[threat] to society than a DMV employee involved in this scheme.
Mr. Valnor was intimately . . . involved in the market through which
unauthorized individuals obtained driver’s licenses. This market is
not state regulated, but rather by its very nature operates below the
radar of the state and society at large. Therefore, unlike the DMV
employee who will never again return to his or her position to commit
the same crime, Mr. Valnor as a middleman is free to return to his,
quote, market of illegally obtaining and selling driver’s licenses
validly issued or otherwise.
10
Because there are no systematic safeguards to prevent Mr.
Valnor from returning to his dangerous position and committing the
similar acts, the Court finds that in order to effectuate the aims of [18
U.S.C. §§ 3553(a)(2)(B) and (C)], and thereby afford adequate
deterrence and protect the public from further crimes of this nature
committed by Mr. Valnor, a sentence above the high end of the
advisory guideline range is appropriate and reasonable.
Therefore, the Court departs to forty-two months as the starting
point. The Court now considers the government’s . . . motion for a
downward departure.
Thus, the district court explained, the starting point meant that “absent any motion
for a downward departure, I would otherwise impose a sentence of forty-two
months.”
After hearing from the parties regarding Valnor’s cooperation, the court
granted the government’s motion for downward departure, finding that Valnor had
rendered substantial assistance to the United States. The court said that it had
reviewed the advisory Guidelines range, as well as the factors contained in 18
U.S.C. § 3553(a), and had “departed above the advisory guideline range for the
reasons previously stated,” to 42 months, which was “more than reasonable as a
starting point for a crime of this seriousness, especially with respect to national
security,” before deciding to depart downward based on Valnor’s substantial
assistance. Ultimately, the court sentenced Valnor to a 28-month term of
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imprisonment followed by two years’ supervised release. Valnor then objected to
the overall sentence, which the court overruled. This appeal followed.
II.
After United States v. Booker, 543 U.S. 220 (2005), a district court, in
determining a reasonable sentence, must consider the correctly calculated
sentencing range under the Guidelines and the factors set forth in 18 U.S.C.
§ 3553(a). See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). We
review a district court’s interpretation of the Guidelines de novo and its factual
findings for clear error. See United States v. Jordi, 418 F.3d 1212, 1214 (11th
Cir.), cert. denied, 126 S. Ct. 812 (2005). “In reviewing the ultimate sentence
imposed by the district court for reasonableness, we consider the final sentence, in
its entirety, in light of the § 3553(a) factors.” United States v. Thomas, --- F.3d ---,
2006 WL 1081105, at *1 (11th Cir. Apr. 26, 2006) (citing United States v.
Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005) (“We do not apply the
reasonableness standard to each individual decision made during the sentencing
process; rather, we review the final sentence for reasonableness.”)).
“Before we conduct a reasonableness review of the ultimate sentence
imposed, ‘we first determine whether the district court correctly interpreted and
applied the Guidelines to calculate the appropriate advisory Guidelines range.’”
12
United States v. McVay, --- F.3d ---, 2006 WL 1193212, at *5 (11th Cir. May 5,
2006) (quoting United States v. Williams, 435 F.3d 1350, 1353 (11th Cir. 2006)
(internal citation omitted)). “It is only after a district court correctly calculates the
Guidelines range, which it still must do after Booker, that it may consider imposing
a more severe or more lenient sentence.” Id. “When we review a sentence for
reasonableness, we do not, as the district court did, determine the exact sentence to
be imposed.” Talley, 431 F.3d at 788. A “district court may impose a sentence
that is either more severe or lenient than the sentence we would have imposed, but
that sentence must still be reasonable.” Id. Our “[r]eview for reasonableness is
deferential,” and “the party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both [the] record and
the factors in section 3553(a).” Id.
Again, Valnor faced a Guidelines sentencing range of 15 to 21 months’
imprisonment based on an adjusted base offense level of 14 and a criminal history
category I. After considering and hearing argument on the § 3553(a) factors, the
district court concluded that a 15 to 21 months’ sentence, as derived from the
advisory Guidelines, failed to properly accommodate the statutory goals of
sentencing embodied in 18 U.S.C. § 3553(a). Specifically, the district court was
troubled that a 15 to 21 months’ sentence would fail to adequately deter or to
13
protect the public from future crimes. Accordingly, the district court settled at a
42-month sentence before considering, and ultimately granting, the government’s
substantial-assistance motion under § 5K1.1. The district court then imposed an
ultimate sentence of 28 months’ imprisonment. We consider the reasonableness of
that sentence today.2
In determining whether a sentence is reasonable, we are guided by the
factors as set forth in 18 U.S.C. § 3553(a). Booker, 543 U.S. at 261; Winingear,
422 F.3d at 1246. These 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--
(A) to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner; [and]
(3) the kinds of sentences available[.]
2
In this appeal, Valnor does not challenge the advisory Guidelines range of 15 to 21
months’ imprisonment, nor does he suggest that the district court should have considered the
government’s § 5K1.1 motion based on substantial assistance before applying the § 3553(a) factors.
Cf. McVay, 2006 WL 1193212, at *8 (noting that, on remand, “after it has decided the length of
departure warranted by the substantial assistance motion, the district court is then obliged to take
into account the advisory Guidelines range and the sentencing factors set forth in 18 U.S.C. §
3553(a) in fashioning a reasonable sentence” (emphasis added)). At all events, from our review of
the transcripts, we are satisfied the district court’s ultimate sentence was reasonable.
14
18 U.S.C. § 3553(a)(1)-(3). “Although sentencing courts must be guided by these
factors, ‘nothing in Booker or elsewhere requires the district court to state on the
record that it has explicitly considered each of the § 3553(a) factors or to discuss
each of the § 3553(a) factors.’” Thomas, 2006 WL 1081105, at *7 (quoting United
States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005)); see also United States v.
Robles, 408 F.3d 1324, 1328 (11th Cir. 2005) (stating that, post-Booker, district
courts need not conduct an accounting of every § 3553(a) factor and expound on
how each factor played a role in the sentencing decision).
After a thorough review of the record, with particular attention to the
transcripts from Valnor’s three sentencing hearings and the PSI, we are satisfied
that Valnor’s sentence was reasonable. The district court was particularly
concerned with the following facts, which were relevant to the § 3553(a) analysis:
(1) “the egregious nature of the offense” based on its potential impact on national
security; (2) that Valnor’s sales of license renewals to those who were able to
obtain licenses before the 9/11 rule changes, but subsequently could not get
renewals, resulted in the provision of licenses to the very people Congress intended
to subject to greater regulation in the name of national security; and (3) that unlike
in the case of a DMV employee, who could not return to his or her prior position
after conviction, there were no safeguards to prevent middlemen like Valnor from
15
returning to the unregulated market of illegally obtaining and selling driver’s
licenses. The district court concluded that in order to “afford adequate deterrence
and protect the public from further crimes of this nature committed by Mr. Valnor,
a sentence above the high end of the advisory guideline range is appropriate and
reasonable.”
Thus, in imposing sentence, the district court expressly stated that it had
considered “the serious nature of the offenses committed by this defendant.” See
18 U.S.C. § 3553(a)(2) (discussing factors pertaining to “the need for the sentence
imposed,” including “the seriousness of the offense”). Moreover, “[t]he parties’
arguments and the PSI’s calculations outlined ‘the kinds of sentences available.’”
Thomas, 2006 WL 1081105, at *7 (quoting 18 U.S.C. § 3553(a)(3)). And as we
have noted above, the district court considered at length that a middleman like
Valnor could “return[ ] to his dangerous position and commit[ ] . . . similar acts.”
See § 18 U.S.C. § 3553(a)(2) (discussing factors pertaining to need for sentence
imposed “to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense” and “to afford adequate deterrence
to criminal conduct” and “to protect the public from further crimes of the
defendant”). Finally, Valnor faced a 180-month statutory maximum term pursuant
to 18 U.S.C. § 1028(b)(1)(A). Both the 42-month sentence the district court
16
reached after considering the § 3553(a) factors and the ultimate sentence were
appreciably below the length of the statutory maximum.
Although Valnor disagrees with the district court’s assessment of several of
the § 3553(a) factors, on this record, we cannot say that the district court’s careful
consideration of the § 3553(a) factors, as they pertained to Valnor’s sentencing
calculus, was unreasonable. The district court properly fulfilled its role in
considering the Guidelines, but found the Guidelines range to be inadequate to
accomplish the statutory goals of providing adequate deterrence and protecting the
public from further crimes. Accordingly, we conclude that the district court’s 28-
month sentence was reasonable.
AFFIRMED.
17