            Case: 12-11571   Date Filed: 11/16/2012   Page: 1 of 4

                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-11571
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:10-cr-00196-TJC-TEM-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

RICHARD LESTER GREEN,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________
                          (November 16, 2012)


Before PRYOR, MARTIN and FAY, Circuit Judges.

PER CURIAM:
               Case: 12-11571     Date Filed: 11/16/2012    Page: 2 of 4

      Richard Green appeals his sentence of 120 months of imprisonment

following his pleas of guilty to bank fraud, 18 U.S.C. §§ 1344, 2, and aggravated

identity theft, id. § 1028A. Green argues that his sentence is unreasonable. We

affirm Green’s sentence, and we vacate and remand for correction of a

typographical error in the written judgment.

      Green’s sentence is procedurally reasonable. The district court correctly

calculated the advisory guideline range and explained that it decided to vary 50

months above the high end of Green’s advisory guideline range of 37 to 46 months

in sentencing him for bank fraud because that range underrepresented his criminal

history. Green argues that the district court relied on factors unrelated to his

assistance to law enforcement in deciding to grant him a two-point departure for

substantial assistance instead of the six-point departure that he requested, but the

district court based its decision on the “significance and usefulness of [Green’s]

assistance . . . [in the light of] the government’s evaluation of the assistance

rendered.” See United States Sentencing Guidelines Manual § 5K1.1(a)(1) (Nov.

2011). Although Green aided in the prosecution of his codefendants, the district

court explained that it was not “impress[ed] . . . that Mr. Green was willing” to

implicate his “less culpable” codefendants when “the government [argued it had

sufficient evidence to] prosecute[] th[o]se other individuals . . . anyway.”




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      Green’s sentence is also substantively reasonable. Within one month of his

release from state prison, where he served more than three years for grand theft and

a felony offense of passing worthless checks, Green committed serious financial

crimes that inflicted a loss of $30,000 to $70,000 to between 50 and 250 victims.

Green and his codefendants stole checks from two United States Postal Service

collection boxes, altered the names of the payees on the checks, falsely endorsed

the checks for deposit into accounts they controlled or gained access to using

stolen identification information, and withdrew the proceeds of those checks. And

Green’s conduct evidenced his apparent resolve to live a life of crime. Green had

an extensive criminal history that included six delinquencies, 62 adult convictions,

and 121 other charges, and his sentences for those crimes, which ranged from 60

days to 4 years, had failed to have any deterrent effect. In these circumstances, the

district court reasonably determined that a term of 96 months for bank fraud to run

consecutively to a term of 24 months for aggravated theft would best address the

statutory purposes of sentencing. See 18 U.S.C. § 3553(a). Although Green

argues about a disparity between his sentence and lesser sentences imposed on his

codefendants, Green was not similarly situated to those codefendants. See United

States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009). As explained by the

district court, Green’s codefendants had “no criminal record” or “a very minor

criminal record,” “would [not] have [committed the crimes] on their own,” and had

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“roles . . . subservient to Mr. Green.” The district court did not abuse its discretion

in sentencing Green to 120 months of imprisonment.

      We notice a clerical error in the written judgment. The written judgment

states incorrectly that Green pleaded guilty to conspiracy to commit bank fraud.

18 U.S.C. § 1349. Because “it is fundamental error for a court to enter a judgment

of conviction against a defendant who has not been charged, tried, or found guilty

of the crime recited in the judgment,” United States v. James, 642 F.3d 1333, 1343

(11th Cir. 2011) (internal quotation marks omitted), we vacate the written

judgment and remand for the district court to enter a new judgment stating that

Green pleaded guilty to bank fraud. 18 U.S.C. §§ 1344, 2.

      We AFFIRM Green’s sentence, and we VACATE and REMAND for

correction of the written judgment.




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