Case: 12-13236    Date Filed: 01/14/2013   Page: 1 of 7

                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-13236
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 0:09-cr-60196-WPD-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

TIFFANY SILAS,

                                                             Defendant-Appellant.
                          ________________________

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

                                (January 14, 2013)

Before PRYOR, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Tiffay Silas appeals her sentence of 18 months of imprisonment following

the revocation of her supervised release. 18 U.S.C. § 3583. Silas argues that her

sentence is unreasonable. We affirm.
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      In October 2009, Silas pleaded guilty to conspiring to possess a portable

credit card “skimming” device. 

Silas’s presentence

investigation report described how Silas used the device repeatedly to steal credit

card information from customers of a shoe store where she worked. The report

provided that Silas had been referred to a diversionary program in 2008 for uttering

a forged check, but the report did not impose any criminal history points for the

offense. The district court sentenced Silas, at the low end of her guideline range,

to 12 months and one day of imprisonment, followed by three years of supervised

release.

      A month after the start of Silas’s supervised release, she was arrested for

shoplifting and contributing to the delinquency of two minors and, as a result, she

was charged with violating her supervised release. Silas’s probation officer

charged her with failing to refrain from violating the law by committing a theft

offense; failing to refrain from violating the law by contributing to the delinquency

of a minor; and failing to notify her probation officer within 72 hours of her arrest.

      Silas wavered about whether to admit or deny the charges. At her initial

revocation hearing, Silas denied the violations. Before her final revocation

hearing, Silas agreed to confess to having committed a theft offense and failing to

notify her probation officer, but she equivocated about her guilt during the hearing.

Eventually, the district court decided to hold an evidentiary hearing.


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      The United States introduced testimony that Silas transported two minors to

a mall in Palm Beach, where the three of them attempted to steal goods from a

costume jewelry store. Gina Celentano, the manager of the store, testified that she

witnessed Silas and two young girls place store merchandise inside their bags.

Celentano said that she called mall security to observe the three females; she

confronted Silas and retrieved a pair of earrings from her bag; and both Silas and

one of the minors used aliases. Deputy Richard Shehy, of the Sheriff’s Office of

Palm Beach County, testified that he met Silas in the mall security office, where

she proceeded to identify herself using an alias and asked for a notice to appear in

court. Shehy also testified that Silas and her two cohorts stole $600 in

merchandise from different stores inside the mall.

      The United States also introduced testimony from probation officials about

their investigation. A probation officer, Teresa Nair, testified that Celentano

retrieved from Silas a pair of earrings worth $8.50; Silas had been convicted of

retail theft and sentenced to time served, but her two charges of contributing to a

minor had been dismissed; and Silas failed to contact her supervising probation

officer within 72 hours of her arrest. Tanya Okun, Silas’s probation officer,

testified that she received an electronic notice about Silas’s arrest and contacted

Silas. Silas admitted that she did not contact Okun because she was afraid of the

consequences, but Silas told Okun that the earrings “happened to fall in [her]


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purse.” Okun authenticated the certified copies of Silas’s conviction for retail

theft.

         Silas called her brother, Lawrence Johnson, to testify and then Silas testified

in her defense. Johnson testified that he was inside the jewelry store and did not

observe Silas steal any jewelry; Silas refused to leave the store at the requests of a

mall security officer and Celentano; Celentano found merchandise inside one of

the minors’ bags; and Silas owned the items that officers found inside her bag.

Johnson could not recall if Silas had used an alias, and Johnson was unaware that

Silas had pleaded guilty to retail theft. Silas testified that Celentano acted rude

while Silas browsed in the jewelry store, falsely accused her of shoplifting, and

found some merchandise inside one of the minors’ bags that Silas offered to

purchase because she felt responsible for the minor. Silas admitted that she used

an alias to avoid having her supervised release revoked based on someone else’s

misconduct. Silas also admitted having pleaded guilty to retail theft, but contended

that she did so to focus on resolving her revocation hearing.

         The district court discredited the testimonies of Silas and Johnson and

credited the testimonies of the witnesses for the United States. The district court

found that Silas had “violated all three conditions of her supervised release”;

participated in a “scheme between her and the juveniles to shoplift” like a “modern

day Fagin” by transporting the girls to the mall and accompanying them “store to


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store”; failed to notify her probation officer about her arrest; “hop[ed] that for

giving a false name and false date of birth . . . [she could] fool the system so that

they would never find out that she had violated her probation”; and “continued to

try to avoid responsibility . . . [when] confronted by [her] probation officer.”

Based on its findings, the district court held Silas responsible as “an aider and

abettor” for the value of all merchandise stolen. The district court opined that,

“[h]ad [Silas’s crime] been charged correctly, . . . [for committing] grand theft,

which is a felony, . . . [she would have been sentenced for] a grade B violation,”

but the district court “[gave] her the benefit of the doubt [and] score[d] [her

offense] as a grade C violation,” which had an advisory guidelines range between

three and nine months of imprisonment. See United States Sentencing Guidelines

Manual § 7B1.1(a)(3) (Nov. 2009). Silas objected to the decision to hold her

responsible for $600 of merchandise, but the district court overruled the objection.

      The district court varied above the advisory guideline range and sentenced

Silas to 18 months of imprisonment. After it consulted the sentencing factors, 18

U.S.C. § 3553, the district court determined that the “guideline range [was] not

sufficient in this case” based on Silas’s refusal to accept responsibility for her

conduct, the “pattern of stealing and dishonesty” in her criminal history, and her

attempts to evade prosecution by giving a false name to the sheriff’s deputy and

lying to her probation officer.


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      Silas argues that her sentence is procedurally unreasonable because the

district court erroneously held her responsible for committing grand theft based on

“mere speculation,” imposed a sentence above the guideline range on its mistaken

belief that she had committed a Class B violation, and failed to explain its

application of the sentencing factors, but Silas’s arguments are unavailing. The

district court did not clearly err by attributing $600 of merchandise to Silas when

the evidence established that Silas knew of and facilitated all the shoplifting. Silas

admitted transporting her cohorts to the mall; Celentano witnessed all three women

stealing jewelry; Silas claimed responsibility when one cohort was caught; and

both Silas and one cohort used aliases. Nor did the district court err in calculating

Silas’s sentence. In spite of finding that Silas had committed grand theft, the

district court scored Silas’s offense of retail theft as a Class C violation based on

the $8.50 value of the earrings found in her bag. And the district court explained

that a sentence within the recommended guideline range failed to account for all

the sentencing factors. The district court was not required “to state on the record

that it [had] explicitly considered each of the [section] 3553(a) factors or to discuss

each of [those] factors.” United States v. Scott, 

, 1329 (11th Cir.

2005).

      Silas also argues that her sentence is substantively unreasonable, but the

district court did not abuse its discretion by varying nine months above the high


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end of Silas’s advisory guideline range to impose a sentence of 18 months of

imprisonment. Undeterred by her previous arrests and sentences, Silas returned to

her life of theft and dishonesty and facilitated the same misconduct by younger

women. Based on the evidence at Silas’s sentencing hearing about her misconduct

and her admitted efforts to evade prosecution, the district court reasonably

determined that a sentence above the recommended guideline range would

adequately punish Silas for violating the terms of her supervised release, address

Silas’s lack of respect for the law, and deter her from similar future conduct.

Silas’s sentence, which is well below the maximum statutory sentence of 24

months, is reasonable.

      We AFFIRM Silas’s sentence.




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