AGEE, Circuit Judge.
Alfredo Homes Susi appeals the sentence imposed following remand for resentencing. In an earlier appeal, we affirmed Susi's convictions on one count of conspiracy to defraud, in violation of 18 U.S.C. § 371, and multiple counts of aiding and abetting wire fraud, in violation of 18 U.S.C. § 1343. United States v. Susi ("Susi I"), 378 Fed.Appx. 277, 288 (4th Cir.2010) (per curiam) (unpublished). However, we "vacate[d] Susi's sentence, including the order of restitution, and remand[ed] the case for resentencing consistent with [the] opinion." Id. After resentencing, Susi now raises the following challenges to his new sentence: (1) the district court erred in not recalculating his recommended Sentencing Guidelines range as part of the resentencing; (2) the sentence is substantively unreasonable because the district court imposed the sentence based on the impermissible factor that Susi exercised his right to trial; and (3) the sentence is procedurally and substantively unreasonable because the district court failed to provide an individualized and adequate explanation for the sentence and did not properly weigh the 18 U.S.C. § 3553(a) factors. For the reasons that follow, we affirm the judgment of the district court.
Susi's convictions arose from his participation in a telemarketing sweepstakes scheme in Costa Rica. Susi worked at one of the approximately sixteen call centers operating in Costa Rica that functioned independently but employed the same basic technique. We described the criminal scheme in greater detail in our prior opinion, and do not need to reiterate it here. Susi I, 378 Fed.Appx. 277, 280. Although many of the other call center operatives entered into plea agreements, Susi pleaded not guilty to the offenses with which he was charged. The case went to trial and Susi was convicted by a jury.
The pre-sentence report ("PSR") determined that the actual loss attributable to the call center where Susi worked for the period of time he worked there was approximately $760,000. Susi did not object to this computation. And although Susi initially objected to the PSR's Sentencing Guidelines calculation of an advisory Guidelines range of 168 to 210 months' imprisonment, he later withdrew those objections. Instead, he argued for a variance sentence based on his limited role in the conspiracy. The district court imposed
On appeal, we affirmed Susi's convictions, but found the district court erred with respect to Susi's sentence. Consistent with his prior withdrawal of objections to the Sentencing Guidelines range calculation, Susi did not raise any issue related to the calculation of the Sentencing Guidelines range. Instead, he asserted the district court erred in holding Susi responsible for a conspiracy involving all sixteen call centers that resulted in losses of $4.2 million because the only evidence in the record related to Susi's participation in one call center. We observed that although the district court recognized Susi only worked for one call center and was "directly responsible for a small portion of that," it also had stated in its summary of the nature and scope of Susi's offense that "this fraud involved million and millions of dollars," referring to the loss attributable to the operation of all sixteen call centers rather than just the one where Susi worked. Id. at 286-87 (citation omitted). Accordingly, we held "the district court abused its discretion by basing Susi's sentence on the clearly erroneous understanding that the fraud of which Susi was convicted resulted in $4.2 million in losses. This is true notwithstanding the fact that the sentence was within the properly calculated advisory Guidelines range...." Id. at 287. The district court's error thus affected its assessment of the § 3553(a) factors, but "[i]t also follow[ed] that the district court abused its discretion by ordering that Susi pay $4.2 million in restitution." Id. As we explained:
Id. at 288. Accordingly, we "vacate[d] Susi's sentence, including the order of restitution, and remand[ed] the case for resentencing consistent with [our] opinion." Id.
On remand, Susi filed objections to the supplemented PSR, challenging numerous components of the Sentencing Guidelines calculation, none of which had changed from the original PSR Guidelines calculation. He also filed materials in support of a motion for a downward departure or variance, alleging he had shown substantial assistance to Florida law enforcement related to an unrelated ongoing state drug trafficking investigation and prosecution.
The district court heard Susi's arguments at the outset of the resentencing hearing, expressing concern whether it could "reopen" the Guidelines in light of the limited scope of remand and this Court's conclusion that the Guidelines had been properly calculated. After hearing the parties' arguments, the district court concluded that it could not recalculate the Guidelines because the "law of the case" doctrine and mandate rule precluded it from doing so given that our prior opinion stated that the Guidelines range was proper and resentencing was based on an error in the § 3553(a) and restitution analyses. (J.A. 128.)
The parties then argued as to what a proper sentence would be in light of the § 3553(a) factors. Susi's arguments centered on the following considerations, which he believed supported a downward
The district court imposed a below-Guidelines sentence of 160 months' imprisonment for each count of aiding and abetting wire fraud, and sixty months' imprisonment for the conspiracy, to run concurrently. In so doing, the court "considered all of the sentencing factors," and "highlighted a few of the sentencing factors that it [thought were] particularly important in this case[,]" including the nature and circumstances of the offense, the seriousness of the offense, and the need for general deterrence. (J.A. 163.) The court specifically rejected Susi's arguments that he was entitled to a downward variance based on exceptional remorse, early cooperation, or in order to avoid an unwarranted sentencing disparity. But it did indicate that Susi's cooperation in the Florida drug trafficking offense and his repatriation of $1.1 million to the United States warranted a moderate downward variance, and that Susi's showing of remorse would also "impact his sentence." (J.A. 156.) Lastly, the district court ordered restitution in the amount of $1,105,000.
Susi noted a timely appeal, and we have jurisdiction pursuant to 18 U.S.C. § 3742.
We begin by briefly reiterating the district court's duty when sentencing a defendant, and how we review that process. "[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range." Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Once that is completed, the district court must give "both parties an opportunity to argue for whatever sentence they deem appropriate" and the district court "then consider[s] all of the § 3553(a) factors to determine whether they support the sentence requested by a party." Id. at 49-50, 128 S.Ct. 586.
We review a sentence for reasonableness, applying an abuse of discretion standard. Id. at 51, 128 S.Ct. 586. In conducting that review, the Court first
Id. If we find no significant procedural error, then we consider the substantive reasonableness of the sentence imposed, taking "into account the totality of the circumstances, including the extent of any variance from the Guidelines range." Id.
Susi first challenges the district court's determination that it could not reopen the Sentencing Guidelines calculation under the "law of the case" doctrine or
Susi contends that he was entitled to a de novo hearing at resentencing, notwithstanding his previous withdrawal of any objections to the Guidelines calculation and his failure to raise any issue related to the Guidelines calculation on appeal. This is so, he asserts, because this Court's remand vacated the sentence in its entirety and thus permitted the district court to consider the sentence anew, including entertaining any objections to the calculation of the Guidelines range.
The Government counters that this Court's remand was limited to the issues of restitution and the § 3553(a) analysis, and that it was not necessary to re-examine the Sentencing Guidelines in order to correct the error in the original sentencing. Furthermore, it points to Susi's withdrawal of any objection to the Guidelines calculation and his failure to raise any associated error on appeal as evidence that the Guidelines calculation was not in dispute in the original appeal and thus was not part of this Court's remand for resentencing.
The mandate rule governs what issues the lower court is permitted to consider on remand—it is bound to carry out the mandate of the higher court, but may not reconsider issues the mandate laid to rest. As we have previously stated:
United States v. Bell, 5 F.3d 64, 66-67 (4th Cir.1993) (quotation marks, citations, and alterations omitted).
We need not resolve whether the district court erred in concluding that it was barred from reconsidering the Sentencing Guidelines calculation, because even if we assume that the district court erred in this respect, that error was harmless under the facts of this case.
The language of the mandate, although vacating the sentence in its entirety, was limited only to "resentencing consistent with this opinion." Susi I, 378 Fed.Appx. at 288. The sentencing error identified by this Court dealt with the district court's consideration of factors outside the scope of the record during the § 3553(a) analysis and in calculating the amount of restitution ordered. In the initial sentencing, the district court erred in considering as a basis for Susi's sentence that the conspiracy entailed sixteen call centers instead of just the one where Susi worked, and in attributing a $4.2 million loss from all the call centers to him instead of an amount limited to the one call center. This error in no
Indeed, our prior opinion expressly recognized this bifurcation when it observed that the district court's decision constituted reversible error "notwithstanding the fact that the sentence was within the properly calculated advisory Guidelines range, to which Susi withdrew his objections." Id. at 287. Proceedings "consistent with [our] opinion" thus would in no way require recalculation of an established "properly calculated advisory Guidelines range." Thus, the Guidelines calculation was not an issue in the original appeal and review of that calculation was not expressly governed by the Court's holding or mandate in Susi I.
Susi contends that under the Supreme Court's recent decision in Pepper v. United States, ___ U.S. ___, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), the district court was required to conduct a de novo resentencing that included recalculation of the Sentencing Guidelines and that the court erred in determining that the "law of the case" precluded its doing so. We do not read Pepper as broadly as Susi contends. Pepper examined whether the law of the case doctrine required the district court on resentencing "to adhere to the original sentencing judge's decision granting a 40 percent downward departure." Id. at 1250.
Id. at 1251 (internal quotation marks, citations, and alterations omitted).
Nothing in Pepper, however, requires the district court to reconsider every component of the sentencing decision during resentencing. Pepper thus supports the conclusion that even if the district court erred in concluding that the language of Susi I precluded it from reexamining the Guidelines calculation, it does not follow that, as Susi would have us hold, the district court erred in failing to reopen the Guidelines calculation.
For even if the district court erred in believing that it could not reexamine the Guidelines calculation, the record provides ample support for why such an error was harmless. See Fed.R.Crim.P. 52(a) ("Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."); Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1432, 173 L.Ed.2d 266 (2009) (observing that "procedural errors at sentencing ... are routinely subject to harmlessness review"); see also United States v. Chase, 296 F.3d 247, 249 (4th Cir.2002) (concluding any error in district court's application of the mandate rule was harmless).
The harmlessness of any error is apparent for many reasons. To begin with, Pepper did not eviscerate a sentencing
Id. at 1007-08 (footnote omitted). Thus, while Pepper allows district courts the flexibility to address any component of the sentencing decision that it must in order to "effectuate its sentencing intent," that decision does not fundamentally alter the rule of waiver. Here, it was not necessary to recalculate the Sentencing Guidelines in order to address the error that was the cause for the remand, or to tailor an appropriate sentence taking into consideration § 3553(a)'s full panoply of sentencing factors. The error requiring resentencing was unrelated to the Sentencing Guidelines calculation, and the § 3553(a) assessment is a separate part of the sentencing process, occurring after the Guidelines range is established. Consequently, an error in this latter stage of sentencing does not implicate the former stage.
Susi next contends that his sentence is substantively unreasonable because comments the district court made during sentencing show that the length of his sentence was in part to punish him for exercising his right to trial. Susi posits that "the record and circumstances and results make it clear" that his sentence represents a vindictive punishment for exercising his right to trial and successfully appealing his first sentence because the district court referred to the fact that Susi's decision to go to trial was unnecessary, imposed a "cost to the taxpayers," and that he stood out from his co-conspirators as a result of not cooperating from the outset by pleading guilty. (Opening Br. 54 (citing J.A. 122, 159).) Because his sentence is so much higher than "similarly situated" co-conspirators, Susi asserts the district court unfairly penalized him for exercising his right to trial.
We previously articulated the applicable analysis as follows:
United States v. Perry, 335 F.3d 316, 323-24 (4th Cir.2003) (internal quotation marks and citations omitted). As applied to Susi's case, this due process protection extends not only to his exercise of the right to appeal, but also the right to go to trial. See Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) ("[P]unish[ing] a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort."); United States v. Olivares, 292 F.3d 196, 198 (4th Cir.2002) ("Due process requires that vindictiveness play no role in resentencing the defendant.").
No presumption of vindictiveness applies to Susi's sentencing because his sentence after remand (160 months) was less than his original sentence (180 months). See United States v. Kincaid, 964 F.2d 325, 328 (4th Cir.1992) (holding that the presumption of vindictiveness only
Susi does point to several portions of the sentencing hearing to support his claim that the district court punished him for exercising his right to go to trial. Having reviewed the entirety of the sentencing transcript, we do not agree with Susi's contention. Read in context, and as part of the ongoing and lengthy exchange with both attorneys, the district court's references to Susi's decision to go to trial, rather than plead guilty, do not indicate that the court was penalizing Susi for exercising that right. As an initial matter, the specific statements Susi points to do not occur during the court's explanation of the reasons for the sentence it imposed; rather, they are located in the court's dialogue with the attorneys regarding their arguments. More importantly, the court's statements were made in response to and regarding one of Susi's primary arguments in favor of a downward variance.
During the sentencing hearing, Susi asserted that § 3553(a)(6)—the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct—warranted a downward variance because Susi's Guidelines range was significantly higher than the sentences other members, and even leaders, of the Costa Rican sweepstakes scam had received. Susi also argued that he had exhibited contrition for his participation in the offenses through his rehabilitative and cooperative efforts since his original sentencing, which placed him "if not on a level with the other co-defendants,... certainly ... in a different posture for this Court to consider when... looking at the disparity question." (J.A. 109-21.) In the context of engaging Susi's counsel on that question, the district court referred to Susi exercising his right to a trial and thereby
(J.A. 121-22.) Susi concurred, and the court continued, "There's a distinction between someone who pleads guilty and someone that goes to trial. That doesn't mean he's not remorseful...." (J.A. 122.) Shortly thereafter, the court stated, "The Supreme Court has said many times and so has the Fourth Circuit that a defendant who chooses to put the [government] to its burden is not cooperating to the point that he should be considered the same as a defendant who admits his guilt and doesn't require the government to" meet its burden. (J.A. 124.)
Taking into consideration Susi's own arguments in favor of a variance and the totality of the district court's statements on this point, we find that the record does not support Susi's claim that the court improperly used his having gone to trial as a basis for sentencing him. Instead, the court's statements reflect the well-recognized principle that defendants who plead guilty can be given the benefit of that cooperation as part of their Guidelines calculation and ultimate sentence, while defendants who exercise their right to a trial have no entitlement to the same
Susi lastly contends the district court "did not properly consider nor properly apply the individualized sentencing factors or [§ ] 3553." (Opening Br. 40.) Susi's various assertions boil down to claiming that had the district court given proper weight to his arguments, it would have imposed a lower sentence, and that it failed to adequately explain its reasons for rejecting Susi's arguments. Thus, he challenges both the procedural and substantive reasonableness of his sentence.
Having reviewed the sentencing hearing transcript, we conclude that the district court did not commit any procedural errors. The district court allowed the parties considerable time to argue for what they believed was an appropriate sentence under the § 3553(a) factors. It is clear from the record that the court understood each argument Susi was making in favor of a downward variance and the statement of reasons for the sentence it imposed is twelve pages in the transcript, addressing both the § 3553(a) factors and Susi's arguments. The court's explanation considered the following: the nature and circumstances of Susi's offense (limiting consideration to the one call center), the sophistication of the call center, the seriousness of the offense, the concern for general deterrence, the court's belief that Susi had shown remorse and was not likely to be a future threat for purposes of specific deterrence. Similarly, the district
While the district court did not go into length as to all of the § 3553(a) factors, it was not required to do so. United States v. Carter, 564 F.3d 325, 329 (4th Cir.2009) ("[T]he district court need not robotically tick through § 3553(a)'s every subsection.") (internal quotation marks and citation omitted). Certainly the district court's explanation for Susi's sentence, summarized above, is clearly sufficient to satisfy the requirement that the court provide an individualized assessment of the § 3553(a) factors and tailored to Susi's sentence. It also provides an adequate basis for us to review the reasonableness of the sentence imposed. Id. at 329-30 ("[A] talismanic recitation of the § 3553(a) factors without application to the defendant being sentenced does not demonstrate reasoned decisionmaking or provide an adequate basis for appellate review.... [T]he district judge ... must place on the record an individualized assessment based on the particular facts of the case before it. This individualized assessment need not be elaborate or lengthy, but it must provide a rationale tailored to the particular case at hand and adequate to permit meaningful appellate review.") (internal citations and quotation marks omitted).
Turning to the substantive reasonableness of Susi's sentence, we must consider whether the totality of the circumstances shows that the district court did not abuse its discretion in sentencing Susi to 160 months' imprisonment on the wire fraud counts. We have previously held that "a sentence located within a correctly calculated guidelines range is presumptively reasonable." United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.2008); see Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (holding that "a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines"). However, Susi was sentenced to a term of imprisonment that was below the recommended Guidelines range of 168 to 210 months' imprisonment. We have not previously addressed in a published opinion whether a below-Guidelines sentence is also entitled to a presumption of reasonableness. We hold that it is. This conclusion is inherently logical, for if a challenge to the length of a within-Guidelines sentence is presumptively reasonable, the length of a below-Guidelines sentence would even more inherently be substantively reasonable.
Having determined that a presumption of reasonableness applies to the length of Susi's sentence, we must consider whether Susi raises any arguments that would rebut the presumption. We conclude there are none. The district court considered Susi's arguments and appropriately exercised its discretion in rejecting or accepting their impact on determining an appropriate sentence. That the court did not agree with Susi as to the value, or relative weight, to give each factor and thus did not sentence Susi to as low a sentence as he desired does not in itself demonstrate an abuse of the court's discretion. Accordingly, we hold that Susi's sentence is both procedurally and substantively reasonable.
Finding no error in the district court's resentencing of Susi, we affirm the judgment of the district court.
AFFIRMED