                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 04-15344                   APRIL 18, 2006
                       ________________________           THOMAS K. KAHN
                                                               CLERK
                    D. C. Docket No. 03-60235-CR-JIC

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                  versus

ARNE SOREIDE,

                                                     Defendant-Appellant.


                       ________________________

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

                             (April 18, 2006)

Before BLACK, BARKETT and COX, Circuit Judges.

PER CURIAM:
       Arne Soreide appeals his convictions for: 1) one count of conspiracy to

commit mail fraud and wire fraud, in violation of 18 U.S.C. § 371; 2) twenty-four

counts of mail fraud, in violation of 18 U.S.C. §§ 2, 1341; 3) two counts of wire

fraud, in violation of 18 U.S.C. §§ 2, 1343; 4) five counts of money laundering, in

violation of 18 U.S.C. §§ 2, 1956(a)(1)(B)(i); 5) nine counts of money laundering,

in violation of 18 U.S.C. §§ 2, 1956(a)(1)(A)(i); 6) twenty-five counts of engaging

in prohibited monetary transactions, in violation of 18 U.S.C. §§ 2, 1957; 7) one

count of filing a fraudulent income tax return, in violation of 26 U.S.C. § 7206(1);

and 8) one count of filing a fraudulent corporate tax return, in violation of 26

U.S.C. § 7206(1).1 Soreide argues that the district court improperly denied his

motion to sever the conspiracy and fraud counts from the remaining counts in the

indictment and that the district court committed several constitutional and statutory

errors in calculating his sentence. For the reasons discussed below, we affirm the

conviction, but vacate the sentence and remand for resentencing.

       Arne Soreide was the owner and chief executive officer of Accutel




       1
          Soreide was sentenced to concurrent prison terms of 60 months on each count of
conspiracy to commit mail fraud and wire fraud; 60 months on each count of committing mail
fraud and wire fraud; 236 months on each count of money laundering; 120 months on each count
of engaging in prohibited monetary transactions; and 36 months on each count of filing a
fraudulent income and corporate tax return. Soreide was also ordered to pay $7,603,959.25 in
restitution. Soreide’s sentence is to be followed by three years of supervised release.

                                             2
Communications, Inc. (“Accutel”).2 Accutel would purchase long-distance

services at wholesale prices from other long-distance providers. It would resell the

services by engaging in “slamming” and “cramming,” in which it switched

telephone customers’ long distance services to Accutel without the customers’

permission (slamming) and then charged the customers a monthly fee for having

Accutel as their long-distance provider (cramming). Accutel generally charged

customers an additional $4.95 per month.

       Accutel’s slamming and cramming resulted in millions of dollars of false

charges to long-distance customers. Accutel transmitted its charges to customers

by providing outside telecommunications consulting companies with billing data.

Those companies would then process the data and wire the reformatted information

to a billing agent, which provided the information to local telephone companies for

billing. When customers complained to Accutel and the Federal Communication

Commission (“FCC”), Accutel falsely told the customers that the change in service

was inadvertent, and Accutel provided false records to the FCC.

       After a jury found Soreide guilty on all counts, the district court empaneled a

sentencing jury. The sentencing jury returned a special verdict form,3 finding that

       2
         Kim Sottile, who was responsible for the day-to-day operations of Accutel, was also
charged in the conspiracy. She pled guilty and testified against Soreide.
       3
        The special verdict form asked the jury to answer nine questions involving: (1) the
amount of “actual loss”; (2) the amount of “intended loss”; (3) the number of victims; (4)

                                               3
the actual loss amounted to more than $7 million, but less than $20 million; the

intended loss amounted to more than $20 million on counts 1-27 and more than $7

million, but less than $20 million on counts 28-66; more than fifty victims were

involved; Soreide used mass-marketing and sophisticated means; the tax loss was

more than $400,000, but less than $1 million; Soreide failed to identify the source

of income exceeding $10,000 from criminal activity on his tax return; he was an

organizer or leader; and the criminal activities were otherwise extensive.

Thereafter, the district court sentenced Soreide based on an offense level of 23 with

enhancements of 9 points based on an amount of funds laundered by Soreide that

was more than $7 million, but less than $20 million, and 4 points based on

Soreide’s role as an organizer or leader.

                                        A. Conviction

       Soreide first argues that the district court improperly denied his motion to

sever the conspiracy and fraud charges (counts 1-27) because the denial of

severance deprived him of the right to testify on some charges, but not others.

“[T]o establish that the joinder of charges kept him from testifying, [a defendant]

must show that the charges were distinct in time, place, and evidence, that there


whether Soreide used “mass marketing”; (5) whether he used “sophisticated means”; (6) the
amount of “tax loss”; (7) whether Soreide failed to report or properly identify the source of
income exceeding $10,000; (8) whether Soreide was an “organizer,” “leader,” “manager” or
“supervisor”; and (9) whether Soreide’s criminal activities were otherwise extensive.

                                                4
was ‘important’ evidence that he might have offered on one set of charges but

could not, and that he had a ‘strong need’ not to testify on the other counts.”

United States v. Hersh, 297 F.3d 1233, 1243 n.15 (11th Cir. 2000) (citation

omitted) (quoting United States v. Forrest, 623 F.2d 1107, 1115 (5th Cir. 1980)

(holding that “severance is not mandatory simply because a defendant indicates

that he wishes to testify on some counts but not on others”)). Because Soreide has

failed to set forth the requisite showing for severance, the district court did not err

in denying the motion to sever. Id.; see also Fed. R. Crim. P. 8(a)4; United States

v. Dominguez, 226 F.3d 1235, 1239 (11th Cir. 2000).

                                        B. Sentence

       Soreide makes four arguments concerning his sentence: (1) the district court

committed statutory and constitutional error pursuant to United States v. Booker,

543 U.S. 220 (2005); (2) the district court failed to make specific factual findings

regarding (a) § 1B1.2(d) of the Sentencing Guidelines, which requires a

determination of whether the various objects of a multi-object conspiracy were


       4
           Rule 8(a) states:

       The indictment or information may charge a defendant in separate counts with 2
       or more offenses if the offenses charged – whether felonies or misdemeanors or
       both – are of the same or similar character, or are based on the same act or
       transaction, or are connected with or constitute parts of a common scheme or
       plan.

Fed. R. Crim. P. 8(a).

                                              5
proven beyond a reasonable doubt, and (b) whether his co-conspirator’s conduct

was reasonably foreseeable to Soreide; (3) the district court improperly enhanced

his sentence based upon facts not alleged in the indictment; and (4) the district

court failed to make the necessary factual findings under 18 U.S.C. § 3553(c).

       Soreide’s first argument is that the district court committed constitutional

and statutory Booker error by applying the guidelines in a mandatory fashion, and

by enhancing his sentence based on an amount of money laundered between $7

million to $20 million and based on his role as an organizer or leader. Because

Soreide made a timely objection, we review his Booker claim under a harmless

error standard.5 United States v. Shelton, 400 F.3d 1325, 1331 n.7 (11th Cir.

2005); United States v. Paz, 405 F.3d 946, 948-49 (11th Cir. 2005).

       We find any constitutional Booker error committed by the district court

harmless. The district court stated that although the jury’s special verdict “would

       5
           We have held that:

       There are two harmless error standards. One of them applies to Booker
       constitutional errors, the other to Booker statutory errors. . . . [C]onstitutional
       errors are harmless where the government can show, beyond a reasonable doubt,
       that the error did not contribute to the defendant’s ultimate sentence . . . . Booker
       statutory errors, on the other hand, are subject to the less demanding test that is
       applicable to non-constitutional errors. . . . A “non-constitutional error is
       harmless if, viewing the proceedings in their entirety, a court determines that the
       error did not affect the [sentence], ‘or had but very slight effect.’ If one can say
       ‘with fair assurance . . . that the [sentence] was not substantially swayed by the
       error,’ the [sentence] is due to be affirmed even though there was error.”

United States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005) (citations omitted).

                                                 6
have no impact upon the [c]ourt’s sentencing decision,” it would impact the court’s

decision if “the Supreme Court later determine[d] that Blakely [v. Washington, 542

U.S. 296 (2004)] extends to federal sentencing.” As mentioned above, the special

verdict indicated that Soreide was responsible for $7 million to $20 million in

actual loss and more than $20 million in intended loss, and that he participated as

an organizer or leader. Because these jury findings were identical to those made

by the sentencing judge and because they would be applied upon resentencing, any

constitutional error was harmless. See United States v. Lee, 427 F.3d 881, 892

(11th Cir. 2005) (holding that Booker constitutional error was harmless beyond a

reasonable doubt because on remand the district court would have given defendant

the same sentence).

      As for Soreide’s claim of statutory Booker error, we remand for

resentencing. Statutory Booker error arises “when the district court misapplies the

Guidelines by considering them as binding as opposed to advisory.” Shelton, 400

F.3d at 1330-31. Because the district court considered the guidelines to be

mandatory, it committed statutory Booker error. The government bears the burden

of showing that the statutory error was harmless. United States v. Mathenia, 409

F.3d 1289, 1292 (11th Cir. 2005). The government argues that the error was

harmless because the sentencing judge considered Soreide’s lavish lifestyle, the



                                          7
effect on the victims, and the extent of punishment and deterrence stemming from

a sentence in the middle of the guidelines range.

      We have previously ruled that a sentence in the middle of the guidelines

range is insufficient to prove harmless error. United States v. Glover, 431 F.3d

744, 749-750 (11th Cir. 2005) (holding that “the sentence alone tells us nothing

about whether the district [court] would have imposed a lesser sentence”). Rather,

the government must set forth “something in the record [to] suggest[] that the

district court would have imposed the same or a greater sentence.” Id. at 750.

What sentence the district court would have imposed had it considered the

guidelines advisory, however, is unknown. As the government states in its brief,

“the court declined to say how it would have exercised discretion to sentence

defendant without guidelines.” Moreover, the comments of the sentencing judge

here that “the defendant and his family enjoyed a lavish lifestyle at the expense of

many unsuspecting victims” and that “a sentence in the middle range of the

Guidelines would sufficiently punish the defendant and deter others from

committing like or similar crimes” are insufficient to say with fair assurance that

the statutory Booker error was harmless. Id. at 749-50 (holding statutory Booker

error was not harmless where district court imposed sentence in middle of

guidelines range and there were no statements in the record reflecting that the court



                                          8
would have imposed the same or greater sentence under advisory guidelines); see

also United States v. Cain, 433 F.3d 1345, 1348-49 (11th Cir. 2005) (concluding

that constitutional error was not harmless because district court did not state that it

would have imposed the same or higher sentence if it had the discretion to do so,

even though it sentenced defendant to the “high end” the guidelines range and

stated that the sentence was “appropriate”); cf. United States v. Gallegos-Aguero,

409 F.3d 1274, 1277 (11th Cir. 2005) (holding statutory error harmless where

district court imposed the highest available sentence under guidelines range and

considered sentencing to the statutory maximum); United States v. Mejia-Giovani,

416 F.3d 1323 (11th Cir. 2005) (finding that district court’s express statements that

the defendant might not benefit under an advisory system with the court’s warning

that defendant was at risk for an upward departure made statutory error harmless).

      Soreide next argues that the district court failed to make specific factual

findings with regard to the nature and scope of Soreide’s relevant conduct in the

conspiracy. Because we find that there was ample evidence to support the district

court’s description and determination as to Soreide’s potential role, we find that the

district court did not improperly fail to make specific factual findings. See United

States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002) (holding that a “sentencing

court’s failure to make individualized findings regarding the scope of defendant’s



                                           9
activity is not grounds for vacating a sentence if the record support[ed] the court’s

determination with respect to the offense conduct, including the imputation of

others’ unlawful acts to the defendant” (citing United States v. Matthews, 168 F.3d

1234, 1247 (11th Cir. 1999))).

      We also find no merit to Soreide’s claim that the judge improperly enhanced

his sentence based on facts not alleged in the indictment. Specifically, Soreide

claims that the district court amended the indictment by submitting the special

verdict form to the jury, asking whether Soreide was an organizer or leader.

Soreide further claims that because facts concerning his role as an organizer or

leader were not alleged in the indictment, whether he was an organizer or leader

should not have been submitted to the jury. Because the jury concluded beyond a

reasonable doubt that Soreide was an organizer or leader, and because Soreide was

sentenced to 236 months imprisonment, which was below the statutory maximum

of 20 years imprisonment, the district court did not unconstitutionally amend the

indictment by enhancing Soreide’s sentence based on his role as an organizer or

leader.

      As to Soreide’s argument that the district court failed to make the necessary

findings under 18 U.S.C. § 3553(a), we have held that a sentencing court is not

obligated to specifically address and analyze on the record every factor set forth in



                                          10
§ 3553(a). United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (holding

that “nothing in Booker or elsewhere requires the district court to state on the

record that it has explicitly considered each of the § 3553(a) factors or to discuss

each of the § 3553(a) factors”). We find that the district court adequately stated its

reasons for imposing a sentence of 236 months imprisonment, as the court

specifically noted several § 3553(a) factors, including “the nature and

circumstances of the offense” and “the need for the sentence imposed” to “provide

just punishment” and “afford adequate deterrence.”

      Accordingly, we AFFIRM the conviction, VACATE the sentence, and

REMAND for resentencing.




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