           Case: 16-11293   Date Filed: 01/19/2017   Page: 1 of 10


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11293
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:15-cr-00411-JDW-AEP-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

IAN ONEIL BROWN,

                                                         Defendant-Appellant.

                       ________________________

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

                            (January 19, 2017)

Before HULL, WILSON, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Defendant Ian Brown appeals his 81-month total sentence, after pleading

guilty to falsely representing a social security number, aggravated identity theft,

and possession of a firearm by an illegal alien. On appeal, Defendant challenges

the procedural and substantive reasonableness of his sentence. After careful

review, we affirm.

I.    BACKGROUND

      According to the Presentence Investigation Report (“PSR”), in 1997,

Defendant, a citizen and national of Jamaica, began using the legitimately-issued

social security number of another individual named Dunn Wiltshire. Wiltshire

filed a police report in 2013, claiming that his identity had been stolen. The Social

Security Office of the Inspector General and the Department of Homeland Security

eventually determined that Defendant was responsible for the misuse of Wiltshire’s

identity. While conducting surveillance at a residence in Florida, which had been

identified as Wiltshire’s, investigators observed Defendant arrive at the residence

in a car registered to Shawn Anthony Canton.

      It was later revealed that Defendant obtained a license in Canton’s name

with Canton’s social security number and a forged version of Canton’s birth

certificate. Defendant purchased the identities of Wiltshire and Canton for $1,000

and $4,000, respectively. Law enforcement officials subsequently searched




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Defendant’s residence and found among other things, birth certificates in Canton’s

and Wiltshire’s names, as well as a firearm.

       Defendant subsequently pleaded guilty to falsely representing a social

security number, in violation of 42 U.S.C. § 408(a)(7)(B), aggravated identity

theft, in violation of 18 U.S.C. § 1028A(a)(1), and possession of a firearm by an

illegal alien, in violation of 18 U.S.C. §§ 922(g)(5), 924(a)(2).

       In anticipation of sentencing, the probation officer prepared the PSR. The

PSR grouped Counts 1 and 3 separately. 1 As to Count 1 (falsely representing a

social security number), the PSR calculated a base offense level of 6, pursuant to

U.S.S.G. § 2B1.1(a)(2). Defendant received a 12-level enhancement under

§ 2B1.1(b)(1)(G), because the loss was more than $250,000 but less than $550,000.

Specifically, Defendant derived $511,176.37 of income earnings that he would not

have otherwise received without the fraud. Defendant also received two additional

enhancements not relevant to this appeal, resulting in an adjusted offense level of

22 as to Count 1.

       As to Count 3 (possession of a firearm by an illegal alien), the PSR assigned

Defendant a base offense level of 24, pursuant to U.S.S.G. § 2K2.1. Because

Defendant did not receive any other enhancements or reductions, his adjusted

offense level was 24. Because the offense level for Count 3 was greater than the

1
  Pursuant to U.S.S.G. § 2B1.6, Count 2 is exempt from grouping and requires a 24-month
sentence consecutive to any other sentence imposed.
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offense level for Count 1, the PSR used the offense level from Count 3 to calculate

the guideline range. With a 2-level multi-count adjustment and a 3-level reduction

for acceptance of responsibility, Defendant’s resulting total offense level was 23.

Based on a total offense level of 23 and a criminal history category of III,

Defendant’s guideline range was 57 to 71 months’ imprisonment. The PSR noted

that Defendant was also subject to a 24-month term of imprisonment as to Count 2,

to run consecutively to any other sentence imposed.

      At the sentencing hearing, the district court sustained an objection Defendant

raised to the 12-level enhancement under § 2B1.1(b)(1)(G), which resulted in an

amended guideline range of 46 to 57 months’ imprisonment as to Counts 1 and 3.

Defendant asserted that a sentence of 46 months’ imprisonment, followed by the

consecutive 24-month sentence on Count 2, would adequately reflect the

seriousness of his crimes. The Government acknowledged Defendant’s acceptance

of responsibility, but stressed the seriousness of the offense and the impact that

Defendant’s crimes had on the victims. The Government asserted that a sentence

at the high end of the guideline range was necessary to reflect the seriousness of

the offense.

      In addressing the 18 U.S.C. § 3553(a) factors, the district court stated in

relevant part:

      The nature and circumstances of the offense have been alluded to by
      counsel. This was a 15-year identity theft, a fraud perpetrated by the
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      defendant without regard to the impact on these victims. While there
      may not be any way to measure the financial loss to these victims, it is
      not difficult to consider the financial stress, the turmoil, the confusion,
      the sense of invasion of privacy that these victims must have and are
      today experiencing.
                                          ...

           This is a serious offense and I don’t mean to understate that in
      any way. And I don’t think one can overstate it. Identity theft is
      rampant. . . .

            It sounds like you have a lovely [fiancée] and a good family.
      You certainly have family support. And they are going to be hurt and
      disadvantaged because of the sentence I impose. But that is your
      doing, sir, not mine.

Consequently, the district court sentenced Defendant to a total sentence of 81

months’ imprisonment, consisting of a 57 month, within-guidelines range sentence

as to Counts 1 and 3, followed by the mandatory, consecutive 24-month term of

imprisonment on Count 2. This appeal followed.

II.   DISCUSSION

      Using a two-step process, we review the reasonableness of a district court’s

sentence for abuse of discretion. United States v. Cubero, 754 F.3d 888, 892 (11th

Cir. 2014). First, we determine whether a sentence is procedurally reasonable. Id.

“A sentence may be procedurally unreasonable if the district court improperly

calculates the Guidelines range, treats the Guidelines as mandatory rather than

advisory, fails to consider the appropriate statutory factors, selects a sentence based




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on clearly erroneous facts, or fails to adequately explain the chosen sentence.”

United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008).

       After determining that a sentence is procedurally sound, we then examine

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

circumstances and the 18 U.S.C. § 3553(a) factors.2 Cubero, 754 F.3d at 892. The

party challenging the sentence bears the burden of showing that it is unreasonable.

United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008). We will only vacate

a defendant’s sentence 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.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir.

2010) (en banc) (quotation omitted).

       A.      Procedural Reasonableness

       Defendant argues that the district court procedurally erred by relying on

factual findings that were not supported by any evidence. In particular, he asserts




2
  The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
education or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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that the Government did not present any evidence to show that both victims

suffered as a result of Defendant’s fraud.

      We review the district court’s factual findings for clear error. United States

v. McGuinness, 451 F.3d 1302, 1304 (11th Cir. 2006). However, because

Defendant did not challenge this factual finding before the district court, we review

his argument on appeal for plain error. See United States v. Johnson, 694 F.3d

1192, 1195 (11th Cir. 2012). We will notice plain error when “(1) there is an error;

(2) that is plain or obvious; (3) affecting the defendant’s substantial rights in that it

was prejudicial and not harmless; and (4) that seriously affects the fairness,

integrity or public reputation of the judicial proceedings.” Id. (quotation omitted).

      The Government must prove the facts relevant to sentencing by a

preponderance of the evidence. See United States v. Watts, 519 U.S. 148, 156

(1997). The sentencing court’s factual findings may be based upon evidence heard

during trial, undisputed statements in the PSI, or evidence presented during the

sentencing hearing. United States v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007).

Although the district court is permitted to draw reasonable inferences from the

record, it must base its factual determinations on reliable and specific evidence, not

speculation. United States v. Creel, 783 F.3d 1357, 1359 (11th Cir. 2015); United

States v. Newman, 614 F.3d 1232, 1238 (11th Cir. 2010).




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      Here, the district court did not commit plain error by finding that the harm

suffered by the victims rendered the offense sufficiently serious to warrant a

sentence at the high end of the guideline range. The PSR stated that Wiltshire filed

a statement in 2013, indicating that as a result of the identity theft (1) he had no

credit, (2) he was forced to move in with his parents, (3) the Internal Revenue

Service had investigated him, and (4) he tried to purchase a car in 2000 but was

denied due to having poor credit. Because Defendant did not object to these facts,

the district court was permitted to rely on them to support its finding. See Smith,

480 F.3d at 1281.

      Although the Government did not present any evidence regarding the harm

suffered by Canton, Defendant has not shown that the district court relied on

speculation in crafting his sentence. Indeed, the record suggests that the district

court based its sentence on the cumulative suffering of the victims and not

speculation regarding Canton. Moreover, the undisputed facts demonstrating the

impact the fraud had on Wiltshire adequately supported the district court’s finding

that the harm suffered rendered the offense serious. See Creel, 783 F.3d at 1359;

Newman, 614 F.3d at 1238. Accordingly, Defendant has not demonstrated that the

district court plainly erred by relying on the impact of Defendant’s crimes in

determining an appropriate sentence.




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         B.    Substantive Reasonableness

         Defendant argues that his sentence was substantively unreasonable because

it was greater than necessary to accomplish the goals of sentencing. We disagree.

         At the outset, Defendant’s sentence was within the guideline range. United

States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (explaining that, although we do

not presume that a sentence within the guideline range is reasonable, we typically

expect it to be reasonable). Moreover, his 57-month sentence was well below the

statutory maximum sentences of 5 years on Count 1 and 10 years on Count 3, and

his consecutive 24-month sentence on Count 2 was required by statute. See 42

U.S.C. § 408(a)(7)(B); 18 U.S.C. §§ 922(g)(5), 924(a)(2), 1028A(a)(1); see also

Gonzalez, 550 F.3d at 1324 (explaining that a sentence that is below the statutory

maximum is an indicator of reasonableness).

         Further, as noted by the district court, Defendant’s sentence was supported

by several § 3553(a) factors, including the nature and circumstances of the offense,

the seriousness of the offense, the need for deterrence, and the need to promote

respect for the law. See 18 U.S.C. § 3553(a)(1)-(2). Specifically, the district court

referenced the 15-year duration of the fraud, the harm suffered by the victims, the

effect the sentence would have on Defendant’s family, and the severity of identity

theft.




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      Although Defendant argues that the mitigating factors supported a sentence

at the low end of the guideline range, the district court was permitted to conclude

that other factors weighed more heavily in favor of a sentence at the top of the

guideline range. See United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)

(“The weight to be accorded any given § 3553(a) factor is a matter committed to

the sound discretion of the district court. . . .” (quotations omitted)).

      Finally, we are not persuaded by Defendant’s argument that the district

court’s imposition of a sentence at the high end of the guideline range defeated the

purpose of sustaining Defendant’s objection to the 12-level enhancement

under § 2B1.1(b)(1)(G). That the district court sustained Defendant’s objection

because the precise amount of loss could not be ascertained did not mean that the

district court was not permitted to impose a sentence at the top of the amended

guideline range. In short, the record shows that the district court considered and

weighed the conflicting factors in making its sentencing determination and

Defendant has not met his burden of showing that the district court arrived “at a

sentence that lies outside the range of reasonable sentences dictated by the facts of

the case.” Irey, 612 F.3d at 1190 (quotations omitted).

      For the foregoing reasons, Defendant’s sentence is AFFIRMED.




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