           Case: 14-15576   Date Filed: 09/01/2015   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-15576
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:14-cr-00080-BAE-GRS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

SENTWALI BOSTON,
a.k.a. Knowledge,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Georgia
                     ________________________

                            (September 1, 2015)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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       After pleading guilty, Sentwali Boston appeals his 48-month sentence for

making a false claim against the United States, in violation of 18 U.S.C. § 287. On

appeal, Boston argues that his sentence, which was 18 months above the advisory

guidelines range of 24 to 30 months, was substantively unreasonable. After

review, we affirm.

                        I. GOVERNING LEGAL PRINCIPLES

       This Court reviews the reasonableness of a sentence under a deferential

abuse of discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128

S. Ct. 586, 591 (2007). We first ensure that the district court committed no

significant procedural error, such as improperly calculating the advisory guidelines

range or inadequately explaining the chosen sentence, and then examine whether

the sentence was substantively reasonable in light of the totality of the

circumstances. Id. at 51, 128 S. Ct. at 597. The party who challenges the sentence

bears the burden to show that the sentence is unreasonable in light of the record

and the § 3553(a) factors. United States v. Tome,611 F.3d 1371, 1378 (11th Cir.

2010). 1


       1
         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
educational 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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      Although in choosing the sentence, the district court must consider the

§ 3553(a) factors, the district court is not required to address each factor separately.

United States v. Bonilla, 463 F.3d 1176, 1181-82 (11th Cir. 2006). Moreover, the

weight to be given to each § 3553(a) factor is committed to the district court’s

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

      Defendant Boston does not argue that his sentence is procedurally

unreasonable or identify any procedural error in his sentencing. Rather, he

primarily contends the district court’s upward variance resulted in a substantively

unreasonable sentence.

      When the district court imposes a sentence outside the advisory guidelines

range, “it must ‘consider the extent of the deviation and ensure that the justification

is sufficiently compelling to support the degree of the variance.’” United States v.

Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quoting Gall, 552 U.S. at 50, 128

S. Ct. at 597). Under binding precedent, we give due deference to the district

court’s decision that the § 3553(a) factors, on the whole, justify the extent of the

variance, and do not require extraordinary circumstances to justify such a sentence

or presume that such a sentence is unreasonable. Gall, 552 U.S. at 47, 51, 128 S.

Ct. at 594-95, 597; see also United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir.

2009). We will vacate such a sentence on substantive reasonableness grounds only

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


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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. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks

omitted).

                             II. BOSTON’S SENTENCE

      Here, Defendant Boston has not shown that his 48-month sentence is

substantively unreasonable in light of the record and the § 3553(a) factors.

According to the undisputed facts in the presentence investigation report, Boston

solicited individuals for whom he could file tax returns with the Internal Revenue

Service (“IRS”), then fabricated information on those returns so his clients

received larger refunds, and kept all or a large portion of those refunds, sometimes

without the taxpayer’s knowledge. Some individuals for whom Boston filed

fraudulent tax returns were willing participants. In all, Boston filed a total of 103

fraudulent returns for the 2008 and 2009 tax years, with an intended loss from

those returns of $526,586.

      Boston’s advisory guidelines range was 24 to 30 months’ imprisonment. In

imposing an 18-month upward variance, the district court stressed the “nature and

repetitive circumstances” of Boston’s offense, noting that although Boston pled

guilty to only one count of making a false claim, he was responsible for over 100




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fraudulent tax returns over two tax seasons. Indeed, Boston was originally charged

with 33 counts, but pled guilty to only one count pursuant to his plea agreement.

      The district court acknowledged Boston’s mitigation argument that some of

his victims were not true victims, but willing participants. The district court

pointed out, however, that Boston actively solicited these individuals by

distributing business cards, that many of them would not have been able to file

fraudulent returns without Boston’s expertise, and that his co-conspirators’

culpability did not negate Boston’s own criminal conduct. The district court also

observed that: (1) although Boston received only one criminal history point under

the Sentencing Guidelines, he had an extensive criminal history involving

duplicitous activities, such as issuing bad checks and providing false information

to police officers; and (2) it was undisputed that after Boston’s April 2010 arrest,

he “continued to defraud the government by unlawfully claiming minors on his

personal tax return” in tax years 2010, 2011, and 2012, which demonstrated a lack

of respect for the law. Finally, the district court stressed the need for Boston’s

sentence to reflect the seriousness of his offense, provide punishment and

deterrence, and protect the public from future crimes by Boston.

      The district court adequately explained its justification for the 18-month

upward variance. Moreover, we cannot say the upward variance is unreasonable

given the extensive scope of Boston’s fraud, his lengthy criminal history, and his


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continuing fraudulent conduct after his initial arrest. Although Boston disagrees

with the weight that the district court gave his personal history and the

circumstances of his crime, the weight to be given any § 3553(a) factor is within

the district court’s discretion. See Clay, 483 F.3d at 743.

       Boston argues that the loss amount of $526,586 used to calculate his

advisory guidelines range overstated his culpability. We disagree. 2 The stipulated

loss amount properly comprised the intended losses resulting from the 103

fraudulent tax returns that Boston agrees he filed with the IRS. See U.S.S.G.

§ 2B1.1 cmt. n.3(A) (providing that the loss is the greater of the actual loss or

intended loss and that the intended loss is the amount of loss intended to result

from the offense, even if the loss was unlikely to occur). As Boston conceded in

the district court, the actual loss was lower than the intended loss primarily because

the IRS issued a stop payment on various refund checks. The fact that Boston

either did not receive or would not have received the entire intended loss amount

does not lessen his culpability for those 103 fraudulent returns.

       Boston contends that the factors for imposing an upward departure under

U.S.S.G. § 2B1.1, such as “an aggravating, non-monetary objective” like infliction

of emotional harm, or additional costs or losses that were not included in the loss

determination, were not present in his case. See U.S.S.G. § 2B1.1 cmt. 20. The

       2
         Prior to his sentencing hearing, Boston filed a sentencing memorandum that, among
other things, stipulated to a loss of $536,586.
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district court, however, did not impose an upward departure under the Sentencing

Guidelines, but rather varied upward based on the 28 U.S.C. § 3553(a) sentencing

factors. Boston also argues that the need for “general deterrence” did not justify a

sentence above the advisory guidelines range, but the district court varied upward

based on multiple factors, not merely on the need for deterrence. Finally, although

Boston claims that the upward variance created an unwarranted sentencing

disparity, he cites only national statistics for “all fraud cases” and does not identify

any individual defendants who arguably could be considered similarly situated.

See United States v. Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009) (explaining

that to show an unwarranted sentencing disparity, the defendant must point to

defendants with similar records who were found guilty of similar conduct).

      For all these reasons, Boston has not shown that his total 48-month sentence

is substantively unreasonable.

      AFFIRMED.




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