Filed: Jul. 07, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS July 7, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III )))))))))))))))))))))))))) Clerk No. 05-30940 )))))))))))))))))))))))))) UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL SCOTT CLEMENTS, Defendant-Appellant. Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:03-CR-50028-1 Before DeMOSS, BENAVIDES, and PRADO, Circuit Judges. PER CURIAM:* Aft
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS July 7, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III )))))))))))))))))))))))))) Clerk No. 05-30940 )))))))))))))))))))))))))) UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL SCOTT CLEMENTS, Defendant-Appellant. Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:03-CR-50028-1 Before DeMOSS, BENAVIDES, and PRADO, Circuit Judges. PER CURIAM:* Afte..
More
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 7, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-30940
))))))))))))))))))))))))))
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL SCOTT CLEMENTS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CR-50028-1
Before DeMOSS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
After a jury convicted Appellant Michael Scott Clements of
conspiracy to commit mail fraud, mail fraud, interstate
transportation of stolen motor vehicles, and money laundering, in
violation of 18 U.S.C. §§ 2, 371, 1341, 1957, and 2312, the district
court sentenced him to eighty-four months’ imprisonment, three years
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
of supervised release, and $589,200 in restitution. Clements now
appeals the reasonableness of his sentence. For the reasons that
follow, we AFFIRM Clements’s sentence.
I. BACKGROUND
Clements was the used car sales manager at John Harvey
Toyota/Lexus of Bossier City, Louisiana (“Harvey Toyota”). Ricky
Pharr, Clements’s co-defendant, operated R&R Wholesale, a used car
wholesaler in Shreveport, Louisiana. Clements and Pharr devised and
executed a scheme to defraud Harvey Toyota by “selling” thirty-nine
Harvey Toyota vehicles to R&R Wholesale.1 After a jury convicted
Clements of conspiracy to commit mail fraud, mail fraud, interstate
transportation of stolen motor vehicles, and money laundering, the
district court incorrectly determined that Clements had a total
offense level of twenty-three and a criminal history category of
four, yielding a United States Sentencing Guidelines range of
seventy to eighty-seven months of imprisonment. Consequently, the
court sentenced Clements to eighty-four months in prison, three
years of supervised release, and $589,200 in restitution.
Clements timely appealed his sentence. In an unpublished
decision, this Court vacated and remanded for re-sentencing upon
1
Pharr gave Clements blank drafts which Clements used as
evidence of vehicle sales. Based on the purported sales, Harvey
Toyota would then pay various lien holders and financial
institutions in order to receive the vehicles’ titles. Pharr
then paid Clements by check in exchange for the return of the
drafts, the titles, and the cars.
2
finding that the district court miscalculated Clements’s sentencing
range. United States v. Clements, 145 F. App’x 33 (5th Cir. 2005).
On remand, pursuant to this Court’s mandate, the district court
reduced Clements’s offense level to twenty-one, which yielded a
sentencing range of fifty-seven to seventy-one months imprisonment.
In open court, the judge stated:
I’ve always felt that there are three reasons
for sentencing: one is to punish, one is to
separate the [dangerous] from society, and the
third, and one that’s not given consideration
anymore, is a message to the public at large.
You know, you’re being punished, and you’re
going to be punished regardless of whatever
sentence I give. Deterrence, I’ll give you,
you probably have learned your lesson; you’re
probably not likely to do it again. But I’m
left with what it says to society if you don’t
get a substantial sentence but every teller
making $1,000, $1,500 a month steals a lousy
$1,000 and she gets a year and a half, two
years, regardless of the reason for her [sic]
stealing the money. And as I said, poor kids
who never had a chance. You know, I guess we
have gotten away from the idea that crimes
against property are not important. Well, I
disagree with that. Crimes against property
are very important. And it’s like casting a
rock in a pool: It affects everything. It’s
going to affect people you don’t even know.
The people at the Toyota place will never
trust again anybody to the degree they trusted
you, and there’s no way to get back at that.
You can’t unring that bell.
It is not the intent of this Court to poke a
stick in the Fifth Circuit’s eye for reversing
me. It is not the purpose of this Court to
say “I told you so” in any way. I have
considered everything that you have just said,
everything that has been written. I have--I
believe you. I believe Ms. Hudsmith.
Nevertheless, it is the judgment of this Court
3
that the sentence that I imposed before is a
correct one.2
Accordingly, the district court deviated from the Guidelines and
sentenced Clements to 84 months in prison, three years of supervised
release, and $589,200 in restitution.
This appeal followed.
II. DISCUSSION
A. The Sentencing Court Imposed a Non-Guideline Sentence.
The threshold issue in this case is whether the sentencing
court imposed a non-Guideline sentence or a sentence involving an
upward departure from the Guidelines.3 While the Government argues
2
The sentencing court also contrasted Clements’s “well-to-
do family” background with that of other defendants “dealing in
pittances to support habits,” and observed that those defendants
are sent “away for 15 and 20 and even 30 years.”
3
This Court’s jurisprudence recognizes three different types
of sentences under the advisory Guidelines regime. United States
v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). First, in cases
where a sentencing court exercises its discretion to impose a
sentence within the properly calculated Guidelines range, we will
“infer that the judge has considered all the factors for a fair
sentence ..., and it will be rare for a reviewing court to say
such a sentence is ‘unreasonable.’”
Id. at 706-07 (quoting
United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005).
Second, a district court may impose a sentence that includes an
upward or downward departure as allowed by the Guidelines.
Id.
at 707. A sentence supported by a departure is also a “Guideline
sentence” because the court’s authority to depart derives from
the Guidelines themselves.
Mares, 402 F.3d at 519 n.7. Finally,
a court may impose a non-Guideline sentence.
Smith, 440 F.3d at
707. A non-Guideline sentence is one that is either higher or
lower than the relevant Guideline sentence but is not based on a
departure.
Id. Before imposing a non-Guideline sentence, a
sentencing court “is still required to calculate the guideline
range and consider it advisory.” United States v. Angeles-
Mendoza,
407 F.3d 742, 746 (5th Cir.2005) (emphasis in original).
4
that Clements’s sentence is an upward departure from the Guidelines,
Clements contends that the district court imposed a non-Guideline
sentence.
Clements’s sentence is a non-Guideline sentence. In United
States v. Smith, this Court decided that the sentencing court
imposed a non-Guideline sentence because “[t]he court did not make
reference to upwardly departing or utilizing an enhancement, nor did
it refer to enhancement provisions of the Guidelines.” 440 F.3d
704, 708 n.3 (5th Cir. 2006). First, like in Smith, the court did
not make reference to upwardly departing or utilizing an
enhancement, nor did it refer to enhancement provisions of the
Guidelines. In addition, the Government’s assertion that the
district court could have upwardly departed pursuant to U.S.S.G. §
4A1.3 is meritless. U.S.S.G. § 4A1.3 provides that “[i]f reliable
information indicates that the defendant’s criminal history category
substantially under-represents the seriousness of the defendant’s
criminal history or the likelihood that the defendant will commit
other crimes, an upward departure may be warranted.” U.S.S.G. §
4A1.3. None of the district judge’s comments indicate that the
court sentenced Clements to eighty-four months imprisonment for that
reason. Moreover, the district court expressly stated that
deterrence was not a factor. Therefore, the district court imposed
Therefore, if the court decides to impose a non-Guideline
sentence, it should utilize the appropriate Guideline range as a
“frame of reference.”
Smith, 440 F.3d at 707.
5
a non-Guideline sentence.
B. Clements’s Sentence is Reasonable.
We review a non-Guideline sentence’s reasonableness for abuse
of discretion. United States v. Reinhart, 442 F.3d 857, 862 (5th
Cir. 2006)(finding that this Court’s inquiry should be restricted
“to determining whether the trial judge overreached the
discretionary sentencing authority afforded under Booker”). Under
United States v. Booker, this Court ultimately reviews a sentence
for “unreasonableness.”
543 U.S. 220, 260 (2005). “Both a district
court’s post-Booker sentencing discretion and the reasonableness
inquiry on appeal must be guided by the sentencing considerations
set forth in 18 U.S.C. § 3553(a).”4
Smith, 440 F.3d at 706. The
4
The section 3553(a) considerations 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 ...
medical care, or other correctional treatment
in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing
range established for
(A) the applicable category of offense
committed by the applicable category of
defendant as set forth in the guidelines ...;
(5) any pertinent policy statement ...;
(6) the need to avoid unwarranted sentence
6
sentencing court “must more thoroughly articulate its reasons when
it imposes a non-Guideline sentence than when it imposes a sentence
under authority of the Sentencing Guidelines.” Id. at 707 (citing
United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005)). The
court’s explanation “should be fact specific and include, for
example, aggravating or mitigating circumstances relating to
personal characteristics of the defendant, his offense conduct, his
criminal history, relevant conduct or other facts specific to the
case at hand which led the court to conclude that the sentence
imposed was fair and reasonable.”
Mares, 402 F.3d at 519. The
lower court, however, “need not engage in ‘robotic incantations that
each statutory factor has been considered.’”
Id. (quoting United
States v. Lamoreaux,
422 F.3d 750, 756 (8th Cir. 2005).
In Smith, this Court agreed with the framework articulated by
the Eighth Circuit in assessing the reasonableness of a court’s
statutory support. Smith, 440 F.3d at 708. “A non-Guideline
sentence unreasonably fails to reflect the statutory sentencing
factors where it (1) does not account for a factor that should have
received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) represents a clear error of
judgment in balancing the sentencing factors.”
Id. (citing United
disparities among defendants with similar
records who have been found guilty of similar
conduct...
18 U.S.C. § 3553(a).
7
States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005)).
We conclude that Clements’s sentence reasonably reflects the
statutory sentencing factors. The lower court’s emphasis on the
severity of crimes against property demonstrates the need for the
sentence to reflect the offense’s seriousness and to promote respect
for the law. Additionally, the fact that the district court
discounted punishment and deterrence in its analysis demonstrates
that the court was guided by § 3553(a) considerations and engaged
in a fact-specific analysis of how the sentence would affect this
particular defendant. Moreover, the district court’s comparison of
Clements’s offense to fraud committed by bank tellers and addicts
illustrates that the sentencing court considered the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct. By
juxtaposing Clements’s situation to that of bank tellers and
addicts, the judge focused on the nature and circumstances of the
offense and Clements’s own history and characteristics. Finally,
the judge’s allusion to the effect of Clements’s offense on Harvey
Toyota, the victim, signifies the court’s emphasis on facts specific
to the case at hand, which led it to conclude that the sentence
imposed was fair and reasonable. Hence, the district court did not
abuse its discretion because Clements’s sentence reasonably reflects
the statutory sentencing factors with the requisite thoroughness.
8
III. CONCLUSION
For the foregoing reasons, we AFFIRM Clements’s sentence.
9
