                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                               Nos. 07-3857 & 07-4215


                          UNITED STATES OF AMERICA

                                           v.

                            MICKEY ALLEN WEICKSEL,

                                                Appellant


                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                       (D.C. Criminal Action No. 2-cr-00495-2)
                      District Judge: Honorable R. Barclay Surrick


                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 11, 2010


               Before: AMBRO, SMITH and ALDISERT, Circuit Judges

                                  Filed: April 2, 2010


                                       OPINION


AMBRO, Circuit Judge

      A jury found Mickey Allen Weicksel guilty of fourteen counts of wire fraud under

18 U.S.C. § 1343, three counts of bank fraud under 18 U.S.C. § 1344, and one count of

conspiracy to launder money under 18 U.S.C. § 1956(h). The District Court sentenced
Weicksel to 168 months’ imprisonment, five years of supervised release, a special

assessment of $1,800 and restitution of $750,324.37.

       Weicksel challenges his sentence as unreasonable because it did not take into

account his serious mental problems as required under 18 U.S.C. § 3553(a)(1). He also

argues that his sentence contravenes § 3553(a)(6) because disparities exist between his

sentence and the sentences of his co-conspirators who were found guilty of similar

conduct. Weicksel also raises seven other issues (though his lawyer deems them

frivolous pursuant to Anders v. California, 386 U.S. 736 (1967)). We disagree with

Weicksel’s claims and therefore affirm.

                                            I.

       Weicksel and Barrylee Paul Beers were partners in a business called Paul-Allen

Enterprises (“PAE”). PAE operated by entering into sales agreements to purchase

residential properties at prices above their fair market values. After an agreement was

reached, Weicksel and Beers would enter into side agreements with the sellers, who at

closing would kick back the excess money to PAE disguised as payments for repair bills.

This repair money was then sent to Weicksel and Beers’ other business, Property

Rehabilitation Consultants (“PRC”). PRC existed solely to funnel money.

       After making the purchase agreements, Weicksel and Beers would obtain

mortgage loans based on the inflated sale prices. To obtain these loans, the two would

falsify information and submit forged tax returns. These mortgages were then used to

make down payments on the acquisition of additional properties.

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       In 2002, a grand jury issued an eighteen-count indictment against Weicksel and

Beers. The latter pled guilty to three counts of the indictment. Weicksel pled not guilty

and his case went to trial. In March 2006 a jury found Weicksel guilty on all counts. He

later submitted a pro se letter to the District Court alleging that his trial counsel was

ineffective. The Court permitted Weicksel’s attorney to withdraw and appointed new

counsel to represent him. At the sentencing hearing, the Court denied Weicksel’s motion

for a below-Guidelines sentence, considered the relevant sentencing factors under

18 U.S.C. § 3553(a), and sentenced him as noted above. This sentence was within the

advisory Sentencing Guidelines range of 168 to 210 months. Thereafter, Weicksel’s new

court-appointed counsel filed a motion to withdraw as counsel. This motion was denied

and Weicksel’s counsel filed a timely notice of appeal, arguing that the District Court

imposed an unreasonable sentence (as well as bringing up the seven other issues on

Weicksel’s behalf that counsel believes are frivolous).

                                              II.

       The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We have

jurisdiction over Weicksel’s challenge to his sentence under 18 U.S.C. § 3742(a) and

28 U.S.C. § 1291.

       “[C]ourts of appeals must review all sentences—whether inside, just outside, or

significantly outside the Guidelines range—under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “The party challenging the

sentence bears the ultimate burden of proving its unreasonableness, . . . and we accord

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great deference to a district court’s choice of final sentence.” United States v. Lessner,

498 F.3d 185, 204 (3d Cir. 2007).

       Our Court exercises plenary review in determining whether issues may be raised

on appeal, and whether issues are frivolous. Anders, 386 U.S. at 744.

                                             III.

                                             A.

       As an appellate court, our role in evaluating the District Court’s sentence is limited

to determining whether the sentence was reasonable. Gall, 552 U.S. at 46. “[A] sentence

will be upheld as reasonable if ‘the record as a whole reflects rational and meaningful

consideration of the factors enumerated in 18 U.S.C. § 3553(a).’” United States v.

Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006) (quoting United States v. Grier, 449 F.3d

558, 574 (3d Cir. 2006)).

       In determining whether a sentence is reasonable, an appellate court must first

“ensure that the district court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, [or] failing to consider the § 3553(a) factors.” Gall, 552 U.S. at 51. “To be

procedurally reasonable, a sentence must reflect a district court’s meaningful

consideration of the factors set forth at 18 U.S.C. § 3553(a).” Lessner, 498 F.3d at 203.

       If the District Court’s sentence is procedurally sound, “the appellate court should

then consider the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard.” Gall, 552 U.S. at 51. If the sentence falls within the

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advisory Sentencing Guidelines range, then “the appellate court may, but is not required

to, apply a presumption of reasonableness.” Id.

       In the end, “[t]he fact that the appellate court might reasonably have concluded

that a different sentence was appropriate is insufficient to justify reversal of the district

court.” Id. “As long as a sentence falls within the broad range of possible sentences that

can be considered reasonable in light of the § 3553(a) factors, we must affirm.” United

States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008).

                                               B.

       Weicksel challenges the District Court’s sentence on the ground that the District

Court unreasonably applied the 18 U.S.C. § 3553(a) sentencing factors. Specifically,

Weicksel argues that the District Court failed adequately to consider Weicksel’s mental

health problems under § 3553(a)(1) and the sentence of Weicksel’s partner, Beers, under

§ 3553(a)(6). We consider each argument in turn.

       On the first issue, Weicksel listed his psychological problems (narcissistic

personality disorder, delusional disorder, hypomania, and probable psychopathic

personality disorder), but failed to explain why they warrant a lighter sentence.

Observing that Weicksel had consistently refused mental health treatment, the District

Court concluded that Weicksel poses a risk to the public and declined to impose a below-

Guidelines sentence. Additionally, the sentencing judge recommended that Weicksel

receive mental health treatment during his incarceration, further demonstrating the

Court’s consideration of Weicksel’s psychological problems. In this context, the Court

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did not commit procedural error and appropriately considered Weicksel’s mental health

problems under § 3553(a)(1). Lessner, 498 F.3d at 203. The sentence was also

substantively sound, as it fell “within the broad range of possible sentences that can be

considered as reasonable in light of the § 3553(a) factors.” Wise, 515 F.3d at 218.

       The second issue arose because the District Court sentenced Weicksel and Beers

differently. Although the charges against both were identical, their circumstances

differed. Beers cooperated with the Government and testified in its case against

Weicksel. In addition, Beers demonstrated understanding and accepted responsibility for

his actions, whereas Weicksel displayed neither acknowledgment nor remorse.

       Congress enacted § 3553(a)(6) “to promote national uniformity in sentencing

rather than uniformity among co-defendants in the same case.” United States v. Parker,

462 F.3d 273, 277 (3d Cir. 2006); see also United States v. Boscarino, 473 F.3d. 634, 638

(7th Cir. 2006) (“[T]he kind of ‘disparity’ with which § 3553(a)(6) is concerned is an

unjustified difference across judges (or districts) rather than among defendants to a single

case.”). When facts on the record show a difference between similarly situated co-

defendants, disparate sentences are reasonable. Parker, 462 F.3d at 278. Thus, the

different sentences for Weicksel and Beers were reasonable, and the District Court did not

abuse its discretion in imposing a harsher sentence on Weicksel.

                                            IV.

       Weicksel’s counsel raised seven additional issues on Weicksel’s behalf, but

quickly dismissed each argument as frivolous, citing Anders. These issues are: (1) he was

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wrongfully indicted; (2) the Court has no jurisdiction over his prosecution; (3) his right to

a speedy trial was violated; (4) his trial attorney should have been dismissed after

Weicksel fired him; (5) there was no proof that Weicksel was involved with PRC; (6) a

document confiscated from him, in which he purportedly admitted to criminal conduct,

should not have been admitted into evidence at trial; and (7) the Government failed to

establish that any “proceeds” were generated by PAE for purposes of the money

laundering statute. We agree with counsel that these claims are frivolous.

1.     Wrongful indictment

       Weicksel argues that a grand jury should not have indicted him, alleging that the

information presented to the grand jury was false and that unspecified true information

was not presented. Weicksel presented no facts to support these claims. “An indictment

returned by a legally constituted and unbiased grand jury, like an information drawn by

the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits.”

Costello v. United States, 350 U.S. 359, 363 (1956). Weicksel has not challenged the

make-up of the grand jury nor alleged that any of its members were biased. Thus, his

claim is without merit.

2.     Jurisdiction

       Weicksel asserts that the District Court has no jurisdiction over him because he is a

sovereign entity that cannot be prosecuted under the laws of the United States. Of course,

he is not his own sovereign entity, and the District Court had personal jurisdiction over

him. In addition, the District Court had subject matter jurisdiction over Weicksel under

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18 U.S.C. § 3231, which gives district courts jurisdiction over all offenses against the

laws of the United States.

3.     Speedy Trial

       Weicksel argues that his right to a speedy trial was violated. He has waived this

argument, as it is raised for the first time on appeal. Additionally, the record shows that

only Weicksel sought a continuance of the trial. Thus, even if he hadn’t waived this

argument, it would fail. Vermont v. Brillon, 129 S. Ct. 1283, 1290 (2009) (“[I]f delay is

attributable to the defendant, then his waiver may be given effect under standard waiver

doctrine.” (quoting Barker v. Wingo, 407 U.S. 514, 529 (1972))).

4.     Firing of Trial Counsel

       Weicksel contends that, because he fired his trial attorney, the District Court

should have held a hearing regarding the dismissal. This argument is not supported by

the record and cannot be raised on direct appeal.

5.     Involvement with PRC

       Weicksel’s claim that evidence failed to show that he was involved with PRC is

entirely without merit. The record provides ample evidence of his involvement with

PRC.

6.     Admission of Letter

       Weicksel’s argument that the Court erred by admitting a handwritten letter, in

which Weicksel admitted to involvement in the conspiracy, is also without merit. The

Government properly authenticated the letter (which, by the way, was found on Weicksel)

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as written by him.

7.     United States v. Santos

       Finally, Weicksel argues that the Supreme Court’s decision in United States v.

Santos, 128 S. Ct. 2020 (2008), changes the outcome of his case and warrants a new trial.

In Santos, the Court held that, under the money laundering statute, the word “proceeds”

refers to profits, not gross receipts. Id. at 2031. In Weicksel’s case, the evidence clearly

established that the laundered money was profits. Therefore, this argument is frivolous.

                                      *   *   *   *   *

       We affirm the judgment of the District Court.




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