Case: 18-12003   Date Filed: 01/13/2020   Page: 1 of 20


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-12003
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:17-cr-20300-RNS-6



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

MICHAEL MUNDAY,

                                                          Defendant-Appellant.

                       ________________________

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

                            (January 13, 2020)

Before BRANCH, GRANT, and TJOFLAT Circuit Judges.

PER CURIAM:
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      Michael “Mickey” Munday appeals his convictions and 144-month sentence

following a jury trial finding him guilty of mail fraud in violation of 18 U.S.C.

§ 1341 and conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349

arising from his involvement in a vehicle theft scheme. On direct appeal, he raises

two issues. Munday first contends that the district court erred by admitting

impermissible character evidence that was unduly prejudicial by allowing

testimony that he had formerly been a “smuggler” and the playing of a video

depicting him driving a flatbed truck with no connection to the crimes at issue, in

violation of Rules 404(a)(1), (b)(1), and 403 of the Federal Rules of Evidence.

Munday also contends that the district court’s sentence was substantively

unreasonable because it exceeded the sentences of his co-conspirators. For the

following reasons, we affirm.

                                   I. Background

      In 2017, Munday was one of ten codefendants arrested and indicted on

numerous charges arising from their involvement in a vehicle “title-washing”

scheme. As part of their criminal enterprise, Munday and his co-conspirators

would first procure cars with outstanding liens from around the United States

through a variety of nefarious means (e.g., from owners behind on loan payments

in exchange for miniscule sums of cash, straw purchases, or actual theft). They

would then transport the cars to Florida and hide them to evade lienholders (often


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banks). Once hidden, they would place “towing and storage liens” on the vehicles,

typically for egregiously high sums, and conduct sham auctions which listed the

cars as no-title, as-is, and cash-only sales—to ensure no one bid. And then the real

trickery came into play. After conducting auctions in which no one bid, the

conspirators suddenly owned the cars; they would then clear the titles pursuant to a

Florida lien statute permitting tow companies to recover unpaid towing liens. See

Fla. Stat. § 713.78(6).1 With clean titles in hand, they would sell the vehicles to a

dealer for a profit. In just six years, the conspirators caused at least $1.7 million in

losses to approximately 30 financial institutions and victimized many individuals

who were behind on their car payments. Nine of the ten conspirators pleaded

guilty—that is, everyone except for Munday, who went to trial.




       1
          Although this specific statute was not referenced in any part of the proceedings below
or in the briefs on appeal, it appears that the conspirators used § 713.78(6) to cover their crimes.
The relevant portion of § 713.78(6) in effect at the time of Munday’s arrest provides:

               Any vehicle . . . which is stored [by a person regularly engaged in the
               businesses of transporting vehicles . . . by wrecker, tow truck, or car
               carrier,] and which remains unclaimed, or for which reasonable charges
               for recovery, towing, or storing remain unpaid . . . may be sold by the
               owner or operator of the storage space for such towing or storage charge . .
               . . The sale shall be at public sale for cash. . . . [N]otice of the sale shall be
               given to the person in whose name the vehicle . . . is registered and to all
               persons claiming a lien on the vehicle . . . . Notice shall be sent by
               certified mail . . . . The certificate of title issued under this law shall be
               discharged of all liens . . . .

Fla. Stat. § 713.78(6) (2014).
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       Twelve days before his trial, the government notified Munday that it

intended to introduce recordings of public statements he had made regarding his

criminal past pursuant to Rule 404(b). 2 As it turns out, in 1991, Munday was

convicted of charges stemming from a criminal enterprise to import approximately

20,000 pounds of cocaine into the United States. He was sentenced to 25 years in

prison, but was released ahead of schedule in 1999. Apparently, stories from his

previous exploits as a drug smuggler were of interest to some, and in 2006 he

agreed to be interviewed on the topic for a documentary, “Cocaine Cowboys.”

With shots of speed boats and flatbed tow trucks flashing on the screen, Munday

provided a detailed play-by-play of his strategies for evading law enforcement

while transporting large quantities of cocaine, including how he would utilize tow

trucks to remain inconspicuous.3 After all, Munday elsewhere explained, police


       2
           Rule 404(b) provides:

                Evidence of a crime, wrong, or other act is not admissible to prove a
                person's character in order to show that on a particular occasion the person
                acted in accordance with the character. This evidence may be admissible
                for another purpose, such as proving motive, opportunity, intent,
                preparation, plan, knowledge, identity, absence of mistake, or lack of
                accident. On request by a defendant in a criminal case, the prosecutor
                must: provide reasonable notice of the general nature of any such evidence
                that the prosecutor intends to offer at trial; and do so before trial--or
                during trial if the court, for good cause, excuses lack of pretrial notice.

Fed. R. Evid. 404(b).
       3
        The specific portion of “Cocaine Cowboys” used by the government at trial can be
found on YouTube. See, e.g., Magnolia Pictures, Cocaine Cowboys: Tow Company at
00:02:12—00:02:40, YOUTUBE (Dec. 18, 2019), https://bit.ly/38RsV1M.
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rarely pull over tow trucks, and even when they do the tow-truck driver can

believably feign innocence if drugs are found in a vehicle’s trunk. With the

documentary and other media attention, Munday suddenly found himself enjoying

“kind of like a cult-like following,” and for the next decade (including while

participating in the title-washing scheme) he was regularly interviewed by radio

stations and on television. 4 During those interviews, he would sometimes describe

himself as a “tow truck driver,” retell his inventive use of a tow truck to smuggle

cocaine, and claim that “if it flies, rolls, or floats, I was the guy that moved it.” He

even recorded his own audiobook, “Tall Tales,” to memorialize some of his stories

as a smuggler, and he advertised that audiobook on Twitter by posting a picture of

himself with a tow truck in the background.

       The government sought to introduce a number of Munday’s recordings and

social media posts, claiming that this evidence demonstrated Munday’s “intent,

knowledge and absence of mistake in the execution of the car title-washing

scheme,” and also that these statements were “inextricably intertwined” with his

participation in the conspiracy. Regarding the latter justification, the government

explained that it also intended to offer testimony from the scheme’s lead organizer,

Mark Johnson (who had agreed to cooperate pursuant to a plea deal), discussing



       4
         During sentencing, Munday admitted that he had “given over 100 interviews,” in
addition to “commercials for clothing companies, for hip hop, and rap people.”
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how Munday’s reputation as a “Cocaine Cowboy” and his statements about his

“prowess as a criminal and a contraband smuggler” were some of the primary

reasons he brought Munday into the conspiracy and eventually grew to trust him.

       Munday filed a motion in limine objecting to the introduction of any

evidence of his prior convictions related to smuggling cocaine as unduly

prejudicial character witness evidence that does not involve acts of dishonesty or

false statements. The district court held a two-day pretrial hearing to entertain both

parties’ arguments and review the relevant recordings. The government specified

the exact video and audio clips it wanted to introduce at trial, including a clip from

“Cocaine Cowboys.” The video clip at issue shows Munday driving a flatbed

truck as he is heard explaining how he previously used such trucks to remain

inconspicuous while transporting cocaine. The district court recognized the

potential for improper prejudice that accompanied the use of the documentary (and

other similar evidence). In seeking to balance that risk with its probative value, the

court allowed the documentary to be admitted only if the government agreed to

“sanitize” it, that is, to strip it of references to drugs and not use its actual title.

       On the day of trial, just before the jury was brought into the courtroom, the

government asked the court’s permission for its witnesses to testify “that [Munday]

discussed smuggling with them and bragged about smuggling and evading law

enforcement,” and assured the court that this testimony would not include


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references to Munday being a “cocaine cowboy” or use the phrase “drug

smuggling.” The court responded approvingly, saying, “I think that was kind of

implicit in my previous rulings.” And Munday “continue[d] with [his] objection.”

       Testimony from multiple witnesses at trial established that Munday’s main

role in this scheme was to help with the transportation of the cars. 5 Johnson’s

testimony was especially illuminating. He testified that “[Munday] was a person

who was able to move things around, he was a logistics guy . . . and he was able to

evade law enforcement successfully for—for a good amount of time.” In fact, it

was this particular skill set that served as the basis for Johnson’s decision to bring

Munday into the conspiracy. They met in a restaurant in 2011, after Johnson had

already begun the title-washing scheme, struck up a conversation about their

mutual love of cars, and discussed Munday’s criminal past. Specifically, Munday

told Johnson about “things that he had done with evading law enforcement . . . and

smuggling.” Were it not for Munday telling Johnson about these criminal

experiences, Johnson testified that he would not have brought Munday into the

conspiracy.

       During trial, Munday objected to the introduction of the clip from “Cocaine

Cowboys” which displayed him driving a flatbed truck. He also objected to that


       5
         Testimony also established that Munday procured vehicles, stored vehicles on his
property, attended sham auctions, signed titles for vehicles, and delivered “washed” titles to
buyers.
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part of Johnson’s testimony about meeting Munday, where Munday supposedly

described his history of “evading law enforcement . . . and smuggling.” Similarly,

he objected to the testimony of a federal agent summarizing the “Tall Tales”

audiobook as being about Munday’s “life previously as a smuggler,” and

testimony from another co-conspirator stating that Munday once described his past

life “smuggling.” The court overruled these objections. After four days of trial,

the jury found Munday guilty of five counts of mail fraud and one count of

conspiracy to commit mail fraud.

      Munday then filed a motion for a new trial. He argued that the

government’s description of him as a “smuggler” was improper character and prior

bad act evidence in violation of Rule 404(a)(1) and (b)(1), respectively, and that

the government had not given him proper notice about the use of that term in

violation of Rule 404(b)(2). He further asserted that the uses of the term

“smuggler” and the clip from “Cocaine Cowboys” were unduly prejudicial in

violation of Rule 403. The court disagreed, finding that the government’s pre-trial

notice of intent to offer Rule 404(b) evidence sufficiently alerted Munday to its

intention to introduce evidence of his past smuggling experience, and the court’s

efforts to limit such evidence to items suggesting Munday’s “intent and knowledge

to conspire and commit mail fraud in the transportation sector” brought that

evidence within Rule 404(b)’s exceptions. The court further found that its limiting


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efforts—which included not allowing the jury to hear the name of the film or

otherwise know that Munday has been referred to as a “cocaine cowboy”—avoided

any undue prejudice that could have resulted from references to Munday’s past

“smuggling” and the “Cocaine Cowboy” video clip. Thus, Munday’s motion for a

new trial was denied. 6

       The probation officer who prepared Munday’s presentence report (“PSI”)

calculated his total offense level at 32 and his criminal history category at III,

resulting in a Guideline range recommendation of 151 to 188 months’

imprisonment. At the sentencing hearing, both the government and Munday

stipulated that his criminal history category should be downgraded to a category II

due to the fact that his involvement in the title-washing scheme began after his

supervised release had ended and so the enhancement for offenses while under any

criminal justice sentence did not apply. The district court accepted that stipulation



       6
          The government also argued that evidence relating to Munday’s past smuggling was
“inextricably intertwined” with his participation in the title-washing scheme. The district court
acknowledged but did not rule upon this issue. On appeal, Munday contends nonetheless that the
“prejudicial evidence was not inextricably intertwined with events occurring during the period of
the charged conspiracy.” Rule 404(b) does not apply to “evidence of uncharged offenses that are
intrinsic to the charged conduct.” United States v. Dixon, 

, 1344–45 (11th Cir.
2018) (quoting United States v. Holt, 

, 1262 (11th Cir. 2015)). Evidence of
criminal activity other than the charged offense is intrinsic and thus not subject to Rule 404(b) if
it “arose out of the same transaction or series of transactions as the charged offense, is necessary
to complete the story of the crime, or is inextricably intertwined with the evidence regarding the
charged offense.” 

(quoting 

). We need not decide whether
these facts indicate the evidence in question was “inextricably intertwined,” however, because
we find that the evidence was admissible on the grounds relied upon by the district court—that
is, the exceptions to Rule 404(b).
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and ultimately determined that his total offense level was 27. Thus, Munday’s

advisory Guideline range fell between 78 and 97 months’ imprisonment.

      The district court then received recommendations from both parties

regarding the sentence. The government recommended 87 months and Munday

recommended 24 months. The court accepted neither recommendation, instead

imposing a 144-month sentence on each of Munday’s six counts to be served

concurrently. To justify the upward variance, the court noted (1) the sophistication

of the title-washing scheme; (2) the length of time of the scheme; (3) the

significant amount of loss the scheme caused; (4) the court’s belief that a criminal

history category of II “does not adequately reflect [Munday’s] true criminal

background”; (5) Munday’s significant participation in the scheme; (6) Munday’s

lack of cooperation; and (7) Munday’s activity during “the last several decades

embracing and publicizing his criminal past” which were “full of braggadocio and

zero remorse.” In sum, the court found that, since Munday’s release from his

previous imprisonment, “[h]e’s made no efforts to become . . . a lawful member of

society.”

      The district court also found it important “to reflect on the sentences of the

three people in this conspiracy who most closely fit into Mr. Munday’s

participation.” Those persons were Johnson, who received 48 months, and two

other individuals, who received 30 and 24 months, respectively. The court noted


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significant differences between Munday’s situation and theirs, specifically that

they had cooperated with the government and did not have criminal backgrounds

as serious as Munday’s. Thus, even though those three individuals “might have

been in the same or higher level in this scheme,” the court concluded that giving

Munday a higher sentence was “not an unwarranted sentencing disparity.”

                                II. Standards of Review

      We review a district court’s evidentiary rulings for abuse of discretion.

United States v. Dodds, 

, 897 (11th Cir. 2003). However, “even if an

evidentiary ruling is erroneous, ‘it will not result in a reversal of the conviction if

the error was harmless.’” United States v. Langford, 

, 1323 (11th

Cir. 2011) (quoting United States v. Docampo, 

, 1096 (11th Cir.

2009)). “An error is harmless unless there is a reasonable likelihood that it

affected the defendant's substantial rights.” 

States v. Hands,

, 1329 (11th Cir. 1999)).

      We review the reasonableness of a sentence under an abuse-of-discretion

standard. See Gall v. United States, 

, 51 (2007); see also United States

v. Tome, 

, 1378 (11th Cir. 2010).

                                    III. Discussion

                               A. Rules 404 & 403 Issues




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       Munday contends that he was irreparably prejudiced at trial due to the

admission of evidence describing his past as a smuggler and a videotape showing

him using a flatbed truck. He argues this evidence is impermissible character

evidence in violation of Rules 404(a)(1) and 404(b)(1), and also that the prejudicial

effect of the evidence was not outweighed by any probative value in violation of

Rule 403.7

       Rule 404(a)(1) prohibits the admission of evidence of “a person’s character

or character trait . . . to prove that on a particular occasion the person acted in

accordance with the character or trait.” Similarly, Rule 404(b) prohibits the

admission of evidence of “a crime, wrong, or other act . . . to prove a person’s

character in order to show that on a particular occasion the person acted in

accordance with the character,” except where such evidence is admitted “for

another purpose, such as proving . . . knowledge . . . [and] absence of mistake . . .

.” To be admissible at trial, Rule 404(b) evidence must (1) “be relevant to an issue

other than the defendant's character,” (2) be supported “by sufficient proof to allow

a jury to find that the defendant committed the extrinsic act,” and (3) “possess

probative value that is not substantially outweighed by its undue prejudice, and the


       7
         Munday also argues in passing that he was not provided sufficient notice regarding the
government’s intent to reference his experience as a “smuggler” or with “smuggling.” This scant
mention of the notice issue is insufficient to raise an argument on appeal. See Sapuppo v.
Allstate Floridian Ins. Co., 

, 681 (11th Cir. 2014) (“We have long held that an
appellant abandons a claim when he either makes only passing references to it or raises it in a
perfunctory manner without supporting arguments and authority.”).
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evidence must meet the other requirements of Rule 403.”8 United States v.

Sanders, 

, 1314 (11th Cir. 2012) (quoting United States v. Miller,

, 1538 (11th Cir. 1992) (en banc)). An exclusion based on Rule 403,

however, “is an extraordinary remedy which the district court should invoke

sparingly, and the balance should be struck in favor of admissibility.” United

States v. Dodds, 

, 897 (11th Cir. 2003). Furthermore, a trial court’s

limiting instruction to a jury “can diminish any unfair prejudice caused by the

evidence’s admission.” United States v. Brown, 

, 1247 (11th Cir.

2011).

       We first find unavailing Munday’s contention that references to his past as a

smuggler and a video clip showing him using a flatbed truck were impermissible

character evidence. Pursuant to Rule 404(b), the government offered the evidence

in question relating to Munday’s past acts as a smuggler who used a tow truck to

evade law enforcement to establish that Munday had the requisite intent,

knowledge of the skills needed, and absence of mistake in the instant offense.9



       8
          Rule 403 provides that a court may “exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403.
        9
          By not pleading guilty, Munday put his intent at issue, which was a required element for
mail fraud. § 1341 (“Whoever, having devised or intending to devise any scheme or artifice to
defraud . . . .”); see also United States v. Matthews, 

, 1311 (11th Cir. 2005)
(finding that in a conspiracy case a not guilty plea “renders the defendant’s intent a material
issue” (quoting United States v. Roberts, 

, 383 (5th Cir. 1980))).
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These ends were reasonable in light of testimony describing Munday’s main role in

the title-washing scheme as being responsible for “transportation” and “logistics”

of vehicles. See United States v. Jernigan, 

, 1281 (11th Cir. 2003)

(finding that a defendant’s previous possession of a weapon in a car “logically

bear[s] on his knowledge of the presence of a gun at the time Jernigan’s car was

pulled over”). Accordingly, the district court properly found that these items of

evidence fell within Rule 404(b)(2)’s exceptions to the general prohibition on prior

act evidence, and thus were relevant to an issue other than Munday’s character.

      We also find that references to Munday’s past as a smuggler and the

“Cocaine Cowboys” video clip were not unduly prejudicial under Rule 403.

During the pre-trial motion in limine hearing, the district court ensured that any

prejudicial impact was mitigated by excluding references to drugs and the term

“cocaine cowboy” throughout the trial. The court repeatedly provided a limiting

instruction to the jury which forbid them from considering evidence of prior

similar acts as evidence of guilt in the title-washing scheme. At no time during

trial did the government specify that Munday’s past smuggling resulted in a

conviction. In fact, the government itself specified in its closing argument that the

prior similar act evidence was meant to establish Munday’s “knowledge . . . or

intent necessary to commit the crime charged in the indictment.” And the

descriptions of Munday’s expertise in smuggling through the act of towing trucks


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and the “Cocaine Cowboys” video clip supporting those descriptions had

significant probative value given Munday’s role in the title-washing scheme. As

Johnson testified, such evidence showed that “[Munday] was a person who was

able to move things around, . . . and he was able to evade law enforcement

successfully . . . .”

       Munday contends nonetheless that references to “smuggling” had special

import given the geographical location of the trial—southern Florida—because of

that region’s unfortunate familiarity with “drug smuggling” in the 1970’s and

1980’s. This unsupported argument is speculative at best and does not tip the

scales toward prejudice.

       Accordingly, we find that none of the challenged evidence was unduly

prejudicial in light of its probative value, thus satisfying the requirements of Rules

404(b) and 403. The district court did not abuse its discretion in admitting this

evidence.

       But even if this evidence should have been excluded, Munday has not shown

that such an error, when weighing “the record as a whole,” had a “substantial

influence on the outcome” of his trial. 

. In other words,

any error that could be shown would be harmless in light of the totality of the

evidence presented at trial. Beyond the references to Munday’s past smuggling

and a video clip showing him towing trucks, the government presented ample


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evidence at trial to demonstrate that Munday committed the mail fraud in question

and was engaged in the conspiracy involving the title washing. The government

presented eight witnesses who testified against Munday, including three co-

conspirators, an individual from whom Munday purchased and picked up a car

used in the scheme, and two law enforcement officers. Each co-conspirator

testified to Munday’s knowledge and participation in the scheme. One law

enforcement officer testified that he actually observed Munday at a sham auction—

and Munday himself admitted to being there. The government also introduced

numerous exhibits, including fraudulently obtained car titles signed by Munday

and delivered to a co-conspirator, checks provided to and signed by Munday in

connection with cars he purchased and delivered in the scheme, photographs of

Munday’s property where numerous cars were hidden from lienholders, and a

videotaped confession of Munday admitting to his participation in what he called

the “hokey doke” scheme (the process Johnson used for “getting titles through the

auctions”). Accordingly, in light of the large body of evidence presented by the

government, we conclude that any assumed prejudice or harm caused to Munday

by references to his past as a smuggler or the video displaying him driving a

flatbed truck “had no substantial influence on the outcome and sufficient evidence

uninfected by error supports the verdict.” 

States v.

Fortenberry, 

, 722 (11th Cir. 1992)); see also United States v.


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Khanani, 

, 1292 (11th Cir. 2007) (“No reversal will result if

sufficient evidence uninfected by any error supports the verdict, and the error did

not have a substantial influence on the outcome of the case.”) (citing 

).

                                 B. Sentencing Issue

      Munday also challenges the district court’s 47-month upward variance from

its Guidelines calculation on substantive grounds.

      On appeal, Munday bears the burden to show the sentence was unreasonable

in light of the record and the 18 U.S.C. § 3553(a) factors. 

.

The § 3553(a) factors include: (1) the nature and circumstances of the offense and

the history and characteristics of the defendant; (2) the need to reflect the

seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense; (3) the need to protect the public; (4) the kinds of

sentences available; (5) the Sentencing Guidelines range; (6) pertinent policy

statements of the Sentencing Commission; (7) the need to avoid unwanted

sentencing disparities; and (8) the need to provide restitution to victims. 18 U.S.C.

§ 3553(a). The weight given to each § 3553(a) factor is within the district court’s

sound discretion. United States v. Kuhlman, 

, 1327 (11th Cir. 2013).

      Should the district court vary upwards from its Guidelines range calculation,

“it must consider the extent of the deviation and ensure that the justification is


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sufficiently compelling to support the degree of the variance.” 

(quoting United States v. Williams, 

, 1322 (11th Cir. 2008));

see also United States v. Rosales-Bruno, 

, 1259 (11th Cir. 2015).

The court’s justification must be “compelling enough to support the degree of the

variance and complete enough to allow meaningful appellate review,” but an

“extraordinary justification” is not required for a sentence outside the guideline

range. United States v. Shaw, 

, 1238 (11th Cir. 2009) (quotations

omitted). On review, we do not presume that a sentence outside the Guidelines

range is unreasonable, but we must consider the extent of any variance and “give

due deference to the district court’s decision that the § 3553 factors, on a whole,

justify the extent of the variance.” United States v. Turner, 

, 574

(11th Cir. 2010) (internal quotations omitted).

      Munday contends that his sentence is substantively unreasonable due to the

disparity between his sentence and those of his co-conspirators. To this end, he

argues that he was “far from the most culpable” of the co-conspirators, that he

should not be dealt a “trial tax” for declining a plea deal when the others accepted

it, and also that the district court unfairly characterized his publicization of his

criminal past as “full of braggadocio.”

      We find these arguments unpersuasive. As described above, the district

court demonstrated thoughtful appreciation for § 3553(a)(6)’s requirement that it


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“avoid imposing a sentence that results in unwarranted sentencing disparities” by

“reflect[ing] on the sentences” of co-conspirators with similar participation as

Munday. In other words, the district court contemplated Munday’s relative

culpability and incorporated that consideration into its sentencing decision.

Beyond this, the district court supported its 47-month upward variance by finding

that Munday’s criminal history did not “adequately reflect his true criminal

background,” and that the title-washing scheme was “sophisticated” and “took

place over a lengthy period of time involving a significant amount of loss.” These

are exactly the type of considerations that are appropriate under § 3553(a). And

whatever disagreement Munday might have with the district court’s deduction

about what his numerous publications regarding his past crimes might suggest

about his present attitude, he cannot deny that he demonstrated a clear lack of

remorse for the instant offense during the sentencing hearing, where he claimed

that he “still feels that he is not responsible in this case.” Moreover, the fact that

Munday’s 144-month sentence is substantially lower than the applicable statutory

maximum of 240 months “points strongly to reasonableness.” United States v.

Nagel, 

, 1377 (11th Cir. 2016). In sum, we find these are

“significant justifications” warranting an upward variance. 

(finding that a “major” upward variance of 60 months was

reasonable).


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                                   IV. Conclusion

      We therefore find that the district court did not abuse its discretion in

admitting evidence establishing that Munday was once a smuggler or towed

vehicles in connection with smuggling activity. We further find that the district

court did not abuse its discretion by varying above the Guidelines range by 47

months.

      AFFIRMED.




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