Case: 12-16526    Date Filed: 01/07/2015   Page: 1 of 6


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-16526
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 9:11-cr-80157-KLR-4



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                     versus

FRANK DEFILIPPO,

                                                           Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                              (January 7, 2015)

Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

     Frank Defilippo appeals his 151-month sentence, imposed after he pled
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guilty without a plea agreement to one count of conspiracy to commit mail and

wire fraud, in violation of 18 U.S.C. § 1349. On appeal, Defilippo argues that the

district court clearly erred in assigning him a four-level enhancement for being an

organizer of the scheme because the district court relied solely on Defilippo’s

factual proffer. He further contends that his sentence was substantively

unreasonable because the district court failed to adequately address his background

and mental health factors when imposing sentence and also because his sentence

was disparate from his co-conspirators’ sentences.


                                            I.


      We review a district court’s factual finding of the defendant’s role for clear

error to determine if the enhancement under § 3B1.1 was applied appropriately.

United States v. De Varon, 

, 937 (11th Cir. 1999) (en banc). “A

factual finding is clearly erroneous when . . . the reviewing court . . . is left with the

definite and firm conviction that a mistake has been committed.” United States v.

Gupta, 

, 887 (11th Cir. 2009) (quotation omitted). There is no clear

error in cases where the record supports the district court’s findings. United States

v. Petrie, 

, 1290 (11th Cir. 2002).

      “The burden of establishing evidence of the facts necessary to support a

sentencing enhancement falls on the government, and it must do so by a


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preponderance of the evidence.” United States v. Perez-Oliveros, 

,

783 (11th Cir. 2007). Findings of fact by a sentencing court may be based on,

among other things, “facts admitted by a defendant’s plea of guilty . . . .” United

States v. Wilson, 

, 1356 (11th Cir. 1989); see also United States v.

Smith, 

, 1281 (11th Cir. 2007) (facts contained in a government

proffer not objected to at a plea colloquy are deemed admitted and may be used to

enhance a sentence).

      Section 3B1.1(a) provides for a four-level enhancement “[i]f the defendant

was an organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). In assessing a

defendant’s role in the offense, the factors the courts should consider include:

      the exercise of decision making authority, the nature of participation
      in the commission of the offense, the recruitment of accomplices, the
      claimed right to a larger share of the fruits of the crime, the degree of
      participation in planning or organizing the offense, the nature and
      scope of the illegal activity, and the degree of control and authority
      exercised over others.

U.S.S.G. § 3B1.1, cmt. n.4; United States v. Esquenazi, 

, 938 (11th

Cir. 2014). More than one person can qualify as an organizer or leader of a

criminal conspiracy. U.S.S.G. § 3B1.1 cmt. n.4; 

.

      The district court did not clearly err in applying a § 3B1.1(a) role

enhancement to Defilippo. Unobjected-to facts in the factual proffer established

that Defilippo, with another conspirator, Tim Owens, organized and operated the
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boiler room scheme, which was at all times under their control, that they split

between them the greater share of the profits from the scheme, and that Defilippo

directly recruited others into the scheme to solicit victims. That Defilippo shared

the role of leader in the conspiracy with Owens does not shield him from the

leader/organizer enhancement. See 

. Accordingly, the

record supports the district court’s decision to apply an enhancement under

§ 3B1.1(a) for playing a leader or organizer role in the conspiracy. 

.

                                         II.

      The district court must issue a sentence “sufficient, but not greater than

necessary” to comply with the purposes of 18 U.S.C. § 3553(a)(2). 18 U.S.C.

§ 3553(a). These purposes include the need for a sentence to reflect the

seriousness of the offense, promote respect for the law, provide just punishment for

the offender, deter criminal conduct, and protect the public from future criminal

conduct. 

Additional considerations include the nature and

circumstances of the offense, the history and characteristics of the defendant, the

applicable guideline range, and the pertinent policy statements of the Sentencing

Commission. 

(3)–(7).

      Section 3553(a)(6) provides that one factor a district court is to consider in

imposing sentence is “the need to avoid unwarranted sentence disparities among


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defendants with similar records who have been found guilty of similar conduct.”

18 U.S.C. § 3553(a)(6). For a substantive unreasonableness claim based on a

sentencing disparity, we require that the defendant raising the claim be similarly

situated to those who received lesser sentences. United States v. Docampo, 

, 1101 (11th Cir. 2009). Defendants who cooperate with the government

are not similarly situated to those who do not. See 

for substantive reasonableness, we consider the totality of

the facts and circumstances in evaluating whether the sentence lies outside the

range of reasonable sentences dictated by the facts of the case. United States v.

Irey, 

, 1189-1190 (11th Cir. 2010) (en banc). The weight to be

accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court. United States v. Amedeo, 

, 832 (11th Cir. 2007).

Although we do not automatically presume a sentence within the guideline range

to be reasonable, we ordinarily expect such a sentence to be reasonable. United

States v. Hunt, 

, 746 (11th Cir. 2008). A sentence well below the

statutory maximum sentence also signals reasonableness. See United States v.

Gonzalez, 

, 1324 (11th Cir. 2008).

      Defilippo was a leader and organizer of the conspiracy, and his 151-month

sentence is at the lowest end of his advisory guidelines range and well below the

20-year statutory maximum. See 

; 

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1324. The district court considered Defilippo’s service as a police officer, his

service-related trauma, and his post-traumatic stress disorder, but nevertheless

concluded that under the circumstances and given the nature and circumstances of

the offense—a well-planned scheme targeting vulnerable victims—a guidelines-

range sentence was appropriate. In light of the totality of the circumstances,

Defilippo has not met his burden of showing that his 151-month, low guidelines

sentence represents a clear error of judgment and is outside the range of reasonable

sentences. See Irey, 

. Nor is the disparity between his and his

co-conspirators’ sentences unwarranted because he was not similarly situated to

them. Docampo, 573 at 1101. Defilippo was the organizer of the scheme, and

unlike his co-conspirators, he took the greater share of the profits, was involved in

the scheme for its entire duration, and was responsible for the scheme’s entire loss.

Furthermore, Defilippo did not provide substantial assistance to the government, as

did some of his co-conspirators, and therefore he is not similar enough to them that

the differences in their sentences are unwarranted. See 

of the record and consideration of the parties’ briefs, we

affirm.

      AFFIRMED. 1




1
      Defilippo’s motion to file reply brief out of time is GRANTED.

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