              Case: 12-15765    Date Filed: 09/25/2013    Page: 1 of 6


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-15765
                             Non-Argument Calendar
                           ________________________

                  D.C. Docket No. 8:11-cr-00269-SDM-AEP-2


UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                      versus

JERRY ALAN BOTTORFF,

                                                           Defendant-Appellant.

                           ________________________

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

                               (September 25, 2013)

Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

      Jerry Alan Bottorff appeals his total life sentence for his involvement in a

murder-for-hire plot. He was indicted and, without a plea agreement, pleaded
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guilty to using a facility of interstate commerce in the commission of a murder for

hire, in violation of 18 U.S.C. §§ 1958(a) and 2; conspiring to use a facility of

interstate commerce in the commission of a murder for hire, also in violation of

§§ 1958(a) and 2; and aiding or abetting carrying or using a gun, resulting in death,

in violation of §§ 924(c), (c)(1)(A)(iii), (j)(1), and 2. Specifically, Mr. Botorff

admitted that he and his now-wife Cristie Botorff, conspired with Michael Garcia

and Luis Lopez to have Lopez kill Cristie’s then-husband Thomas Lee Sehorne, so

that Cristie could collect insurance proceeds. Lopez shot and killed Sehorne on

June 7, 2007, and Cristie collected $1 million.

       Bottorff argues that the district court erred procedurally by considering the

18 U.S.C. § 3553(a) sentencing factors in refusing to depart downward pursuant to

the government’s substantial assistance motion. He further argues that his

sentence is substantively unreasonable. Although the parties read the record

differently, our reading indicates that the district court actually granted the

government’s substantial assistance motion pursuant to United States Sentencing

Guidelines (USSG) § 5K1.1, departed downward, then imposed an upward

variance. 1

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

1
 The “Statement of Reasons” explains: “The court granted the government’s motion under
USSG § 5K1.1. However, on the court’s motion, the court varied upward from the advisory
guideline sentence after addressing the factors set forth under 18 U.S.C. § 3553(a). A sentence
of life is reasonably necessary to achieve the statutory purposes of sentencing.”
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standard. Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007). A

defendant challenging his sentence bears the burden of establishing that it is

unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Where

a defendant raises a sentencing issue for the first time on appeal, plain error review

applies. See United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).

“Plain error requires the defendant to show: (1) an error; (2) that is plain; (3) that

affects substantial rights; and (4) that seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Hoffman, 710 F.3d

1228, 1232 (11th Cir. 2013) (quotation marks omitted).

      In reviewing the reasonableness of a sentence, we use a two-step process.

United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). First, we ensure that

the sentence is procedurally reasonable, meaning that the district court properly

calculated the guideline range, treated the guidelines as advisory, considered the

§ 3553(a) factors, did not select a sentence based on clearly erroneous facts, and

adequately explained the chosen sentence. Gall, 552 U.S. at 51, 128 S. Ct. at 597.

Second, if we determine that a sentence is procedurally sound, we then examine

whether the sentence is substantively reasonable in light of the totality of the

circumstances. Id.

      We review the totality of the facts and circumstances to gauge for

substantive error. United States v. Irey, 612 F.3d 1160, 1189–90 (11th Cir. 2010)


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(en banc). A sentencing court may impose a sentence more severe than the

guideline range so long as that sentence is reasonable. United States v. Crawford.

407 F.3d 1174, 1179 (11th Cir. 2005). We may vacate a sentence only “if we are

left with the definite and firm conviction that the district court committed a clear

error of judgment in weighing the § 3553(a) factors by arriving at a sentence that

lies outside the range of reasonable sentences dictated by the facts of the case.”

Pugh, 515 F.3d at 1191 (quotation marks omitted).

      Although statutory mandatory minimums are generally preclusive, the

Guidelines allow district courts to impose lower sentences based on certain factors.

United States v. Carillo-Ayala, 713 F.3d 82, 88 (11th Cir. 2013). Under USSG

§ 5K1.1, the government may file a motion informing the court that the defendant

provided substantial assistance in the investigation or prosecution of another

individual. USSG § 5K1.1. If the government files such a motion, the court may

impose a downward departure under the Sentencing Guidelines, and the resulting

sentence may fall below the mandatory minimum penalty. Id.

      Bottorff’s sentence was procedurally and substantively reasonable and the

district court committed no error, plain or otherwise. First, the district court

correctly calculated his original Guideline range and noted the impact of the




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mandatory minimum of life imprisonment in 18 U.S.C. § 1958.2 The Court then

granted the substantial assistance motion, it simply chose to impose an upward

variance based on § 3553(a) factors. Thus, the sentence was procedurally

reasonable. See Gall, 552 U.S. at 51, 128 S. Ct. at 597.

       Second, the court indicated that it had considered the parties’ arguments, the

Guidelines, the presentence investigation report (PSI), and the § 3553(a) factors,

including the nature of the offenses and the need for deterrence, before imposing a

sentence which it considered sufficient but no harsher than necessary. The court

noted, among other things, that: (i) Bottorff and his co-defendant contacted a

convicted felon to hire a murderer; (ii) Sehorne was shot outside his home and laid

in a pool of blood until his child found his body hours later covered with insects;

and (iii) the planning extended over a long period of time during which Bottorff

could have stopped the events but chose not to do so.

       Third, the district court’s statement of reasons adequately explained its

reasons for imposing an upward variance:

       [A]ssessed under Section 3553(a), the attributes of the offense and
       these offenders—the startling coldness and moral detachment of the
       Bottorffs as they contemplated and executed this atrocity over many
       weeks and afterward until apprehension, the necessity for an
       unalloyed message to those who would contemplate a similar offense,
       the necessity to protect the community from this species of criminal
       adventure, and the other reasons stated at the sentencing—strongly

2
  Indeed, neither party objected at sentencing to the factual content or guidelines calculations in
the presentence report or the district court’s ultimate sentence.
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       commend the announced sentence, even after careful consideration
       and re-consideration of the sundry matters to which the defense
       directs by attention.

       Finally, Bottorff’s life sentence was, in fact, the applicable statutory

mandatory minimum penalty for the offenses of conviction. Under these

circumstances, Bottorff cannot meet his burden of establishing that the sentence

was substantively unreasonable. See Pugh, 515 F.3d at 1191; Talley, 431 F.3d at

788.

       Upon review of the record and consideration of the parties’ briefs, the

sentence is

       AFFIRMED.




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