            Case: 19-12252    Date Filed: 04/23/2020   Page: 1 of 14



                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                         Nos. 19-12252, 19-12343
                          Non-Argument Calendar
                        ________________________

          D.C. Docket Nos. 0:18-cr-60157-BB-1, 0:17-cr-60304-BB-2


UNITED STATES OF AMERICA,

                                                             Plaintiff - Appellee,

                                    versus

MARK BAUGHER,

                                                          Defendant - Appellant.

                        ________________________

                 Appeals from the United States District Court
                     for the Southern District of Florida
                        ________________________

                               (April 23, 2020)

Before MARTIN, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM:

     Soon after pleading guilty to aggravated identity theft and possession of

unauthorized access devices, Mark Baugher absconded from pretrial release and
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failed to appear for sentencing. As a result, he was charged with contempt of court.

He was arrested approximately ten months later, and he pled guilty to the new

offense. The district court consolidated the cases for sentencing and, after denying

a minor-role reduction, imposed a total sentence of 104 months in prison. That

sentence consisted of consecutive sentences of 60 months as to the access-device

offense, 24 months as to the identity-theft offense, and 20 months as to the contempt

offense. Baugher appeals his sentence, arguing that the district court procedurally

erred and imposed a substantively unreasonable sentence. After careful review, we

affirm the denial of a minor-role reduction. But because we are otherwise unable to

exercise meaningful review of the sentence, we vacate and remand for resentencing.

                                         I.

      To give context to Baugher’s arguments, we begin with the facts and

procedural history of (a) the criminal case, (b) the contempt case, and (3) the

consolidated sentencing.

                                         A.

      In December 2017, a federal grand jury returned an eight-count indictment

against Baugher and a codefendant, Donald Moon. Baugher was charged with one

count of conspiracy to commit access device fraud, in violation of 18 U.S.C.

§ 1029(b)(2); one count of possession of fifteen or more unauthorized access

devices, in violation of 18 U.S.C. § 1029(a)(3); and two counts of aggravated


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identity theft, in violation of 18 U.S.C. § 1028A(a)(1). In April 2018, Baugher pled

guilty, under a written plea agreement, to one count each of possession of

unauthorized access devices and aggravated identity theft (the “fraud offenses”).

      In connection with the plea agreement, Baugher signed a factual proffer

setting forth the facts the government could prove at trial. According to the proffer,

on December 12, 2016, police officers responded to a report by a resort hotel that a

current guest, Moon, had used a fraudulent credit card to purchase a room. The

officers reviewed the records Moon and his hotel guest provided at check-in, which

included a photocopy of a Nevada driver’s license bearing Baugher’s photograph

but another person’s name and information. The officers went to Moon’s hotel

room, and Baugher answered. After lawfully entering the room, the officers saw in

plain view suspected methamphetamine as well as papers containing names and

personal identifying information (“PII”) of others. In addition, Baugher’s wallet

contained two fraudulent drivers’ licenses and four credit and gift cards bearing other

peoples’ names. The officers seized the contents of the hotel room, including

electronic devices and a safe, which were later found to contain over 1,500 pieces of

PII, of which 814 pieces were “specifically attributable” to Baugher.

                                          B.




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      In June 2018, a federal grand jury indicted Baugher for contempt of court, in

violation of 18 U.S.C. § 401(3), based on his failure to abide by the conditions of his

pretrial release. Baugher ultimately pled guilty to that offense on May 17, 2019.

      Again, Baugher signed a factual proffer detailing the facts of the offense.

According to the proffer, Baugher was released on bond with conditions after his

initial appearance on the underlying indictment. Soon after, he violated those

conditions by failing to report to probation as instructed. He was taken back into

custody and then released again in March 2018, this time with additional conditions,

including his enrollment in an electronic-monitoring program, a daily curfew

between 9:00 p.m. and 9:00 a.m., and further drug testing requirements. However,

he missed seven scheduled drug tests in March and April 2018, and he tested positive

for methamphetamine once in April 2018. Then, on May 12, 2018, he left his home

without permission and failed to return by 9:00 p.m. Two days later, his electronic

monitor generated a tamper alert, and probation was unable to contact or locate him.

A warrant issued for Baugher’s arrest. He was not arrested until March 2019.

                                          C.

      Baugher’s sentencing for the fraud offenses was originally set for June 19,

2018. But he failed to appear for the hearing and was transferred to fugitive status.

Once Baugher was arrested, the district court scheduled a consolidated sentencing




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hearing on the fraud offenses and the contempt offense. A probation officer prepared

a consolidated presentence investigation report (“PSR”).

      In calculating the guideline range, the PSR first explained that the aggravated-

identity-theft offense required a mandatory consecutive prison sentence of two

years. See 18 U.S.C. § 1028A; U.S.S.G. § 2B1.6. So that offense played no further

role in the guideline calculations.

      Turning to the other two offenses, the PSR stated that the relevant guidelines

for the access-device offense and the contempt offense were U.S.S.G. §§ 2B1.1 and

2J1.1, respectively. Section 2J1.1 simply redirects to § 2X5.1, which says to apply

the “most analogous offense guideline.” According to the PSR, the most analogous

guideline for Baugher’s conduct was obstruction of justice, U.S.S.G. § 2J1.2. The

PSR grouped the access-device and contempt offenses under U.S.S.G. § 3D1.2(c)

and § 2J1.2, cmt. n.3, and then used § 2B1.1 to calculate Baugher’s offense level

because it resulted in the highest offense level. See U.S.S.G. § 3D1.3(a).

      According to the PSR, Baugher’s base offense level under § 2B1.1 was six.

See U.S.S.G. § 2B1.1(a)(2). Sixteen levels were added for the amount of intended

loss, the number of victims, and the use of device-making equipment or the

production of unauthorized access devices. See id. § 2B1.1(b)(1)(G), (b)(2)(A), and

(b)(11). The PSR stated that, in addition to the items described above, a printer used

to produce fraudulent licenses was found in the hotel room. Importantly, the PSR


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also applied a two-level obstruction-of-justice enhancement because Baugher

“willfully obstructed or attempted to obstruct justice by cutting off his ankle bracelet,

absconding, and failing to appear, as ordered, for his sentencing.” See U.S.S.G.

§ 3C1.1. Baugher did not receive a minor-role adjustment or a reduction for

acceptance of responsibility. As to Baugher’s role, the PSR found that Baugher was

responsible for possessing the PII of 814 victims of identity theft and for an intended

loss of between $250,000 and $550,000.            For comparison, Moon was held

responsible for all the PII found and for an intended loss of between $550,000 and

$1,500,000. Based on these calculations, the PSR recommended a total offense level

of 24, which, along with a criminal history category of II, established a guideline

imprisonment range of 57 to 71 months.

      Baugher objected to the PSR’s failure to apply a two-level minor-role

reduction, arguing that he was subordinate to Moon and did not know the scope or

structure of the conspiracy. See U.S.S.G. § 3B1.2(b). He contended that he simply

forwarded the PII to Moon, who used the PII to make fraudulent drivers’ licenses

and open fraudulent credit-card accounts.

      At sentencing, the district court overruled Baugher’s objection, finding that

his role in the access-device offense was not minor, and then adopted the facts set

forth in the PSR and its guideline calculations. After the court heard personally from

Baugher and his mother, the parties offered their views on an appropriate sentence.


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      Defense counsel argued for a sentence at or below the low end of the guideline

range. Counsel pointed to Baugher’s minor criminal history and contended that the

circumstances leading to the present offenses were an aberration caused by

substance abuse.    Counsel also suggested that the guideline range adequately

accounted for the contempt offense because it was severe and it incorporated a two-

level enhancement for obstruction of justice, which covered the same conduct as the

contempt offense. The government argued that a sentence near the upper end of the

guideline range was appropriate in light of the contempt offense, which it

acknowledged was “accounted for in the guidelines.”

      In explaining the sentence, the district court began by focusing on the conduct

constituting the contempt offense—Baugher’s removal of his electronic monitoring

device, evasion of law enforcement, failure to appear for sentencing, and absconding

for 309 days. The court found that this conduct, which it noted caused Baugher to

lose a reduction for acceptance of responsibility and to earn an enhancement for

obstruction of justice, was “egregious” and showed “an utter disrespect for this

Court’s order and for the requirements of [his] pretrial release.” The court also

agreed with the government that Baugher’s criminal history indicated a pattern of

absconding and failing to respect the law. Then, turning to the fraud offenses, the

court described how Baugher was responsible for fraudulently possessing the PII of

814 victims of identity theft.


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      Summing up, the district court stated that the matters before it for sentencing

were the fraud offenses and “the absconding for . . . 309 days.” The court advised

that it “wrestled much with what is an appropriate sentence for someone who

absconds for the length of time you did, for each day you disregarded the law and

showed a lack of respect.” In particular, the court emphasized the need for deterring

not only Baugher but “others that are contemplating this type of behavior.” The

court found that Baugher’s substance-abuse problems did not fully excuse his

conduct “because there are many individuals that are suffering from substance abuse

but comply with the Court’s order, and not willfully disregard it, and comply with

the terms of supervised release pretrial.” Still, the court described his substance

abuse as a “mitigating factor” that it considered along with “the aggravating factor

of the obstruction of justice[] and the circumstances of the offense in fashioning a

sentence that the Court believes is sufficient but is not greater than necessary.”

      The district court then imposed distinct sentences as to each offense. With

regard to the access-device offense, the court found a “sentence toward the low end

of the advisory guideline range”—60 months—“will provide sufficient

punishment.” The identify-theft offense required a consecutive sentence of 24

months. Finally, with regard to the contempt offense, the court stated that the

sentence for “absconding for 309 days . . . has to matter. And as such, since you

absconded for approximately 10 months, the Court believes that an additional


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sentence of 20 months is appropriate.”          All sentences were imposed to run

consecutively, for a total term of 104 months in prison. Baugher objected to the

consecutive nature of the 20-month sentence, its “factual basis,” and its

reasonableness. Baugher now appeals.

                                          II.

      We review a sentence under a deferential abuse-of-discretion standard. Gall

v. United States, 552 U.S. 38, 51 (2007). We ensure that the sentence is both free

from significant procedural error and substantively reasonable. Id.

      A district court commits significant procedural error if it fails to properly

calculate the guideline, fails to consider the 18 U.S.C. § 3553(a) sentencing factors,

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

in a way that “allow[s] for meaningful appellate review.” Id. at 50–51. If the

sentence is procedurally sound, we then evaluate whether the sentence is

substantively reasonable. Id. A sentence is substantively reasonable if, after giving

a full measure of deference to the sentencing judge, it fails to fulfill the purposes of

sentencing. United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015).

                                          A.

      First, the district court did not clearly err by denying a minor-role reduction.

United States v. Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir. 2010) (stating that

we review the denial of a role reduction for clear error). “Clear error review is


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deferential, and we will not disturb a district court’s findings unless we are left with

a definite and firm conviction that a mistake has been committed.” United States v.

Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016) (quotation marks omitted). It

will rarely be clear error when the court makes a “choice between two permissible

views of the evidence as to the defendant’s role in the offense.” Id. (quotation marks

omitted). The defendant must prove his minor role in the offense by a preponderance

of the evidence. Id.

      Section 3B1.2 provides that a defendant is entitled to a two-level decrease in

his offense level if he was a “minor participant” in the criminal activity. U.S.S.G.

§ 3B1.2. A “minor participant” is someone “who is less culpable than most other

participants in the criminal activity, but whose role could not be described as

minimal.” Id. § 3B1.2, cmt. n.5. The decision whether to apply a minor-role

reduction is “based on the totality of the circumstances and involves a determination

that is heavily dependent upon the facts of the particular case.” Id. § 3B1.2, cmt.

n.3(C). Importantly, the fact that a defendant’s role is less than other participants’

roles in the relevant conduct may not be dispositive because it is possible that none

of them are minor or minimal participants. United States v. De Varon, 175 F.3d 930,

944 (11th Cir. 1999) (en banc).

      Here, the district court’s finding that Baugher was not a minor participant was

amply supported by the record. Undisputed facts in the PSR show that Baugher was


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present with Moon in a hotel room where police officers found a substantial amount

of PII and a printer used to produce fraudulent licenses. Baugher admitted he was

responsible for around half of the PII recovered—which is all that the court attributed

to him when calculating his guideline range—and he was in possession of several

fraudulently produced licenses and cards. These facts indicate that Baugher was

fully aware of the scope and structure of the criminal activity, including Moon’s use

of the PII to produce fraudulent licenses and cards, that he was a substantial

participant in that activity, and that he personally benefitted from it. See U.S.S.G.

§ 3B1.2, cmt. n.3(C). Even assuming Baugher was “somewhat less culpable” than

Moon, this alone does not entitle him to a minor-role reduction. See De Varon, 175

F.3d at 944. Accordingly, the district court did not clearly err in denying a minor-

role reduction.

                                          B.

      Next, we conclude that the district court committed procedural error by failing

to adequately explain the chosen sentence in a way that allows for meaningful

review. See Gall, 552 U.S. at 50–51.

      The district court’s explanation indicates that it intended to treat each offense

distinctly for purposes of sentencing. The court stated that it was sentencing

Baugher to 60 months—“toward the low end of the advisory guideline range”—as

to the access-device offense, 24 months as to the aggravated identity-theft offense,


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and 20 months as to the contempt offense, all to be served consecutively. The court

emphasized that the sentence for “absconding for 309 days . . . has to matter.”

      The problem, in our view, is that the guideline range of 57 to 71 months was

not specific to the access-device offense. Rather, as both parties recognized at

sentencing, it accounted for the contempt offense as well. And it did so in a way

that increased the guideline range under which Baugher was sentenced. Specifically,

the court applied a two-level enhancement for obstruction of justice—for Baugher’s

conduct of “cutting off his ankle bracelet, absconding, and failing to appear, as

ordered, for his sentencing”—without which the guideline range would have been

46 to 57 months. In other words, Baugher’s absconding mattered to the guideline

range because it raised that range by at least 11 months.

      As a result, the district court’s sentences on the access-device offense and the

contempt offense appear to overlap to some degree.            The court imposed “an

additional sentence of 20 months” for the contempt offense—essentially double the

length of time he absconded. But it also appears to have relied on that same conduct

when it sentenced Baugher within the guideline range for the access-device offense.

So despite the court’s comments that it wanted Baugher to serve 20 months for the

conduct of absconding, violating the terms of pretrial release, and failing to appear

at sentencing, it appears that, due to the obstruction-of-justice enhancement, he will

serve something more like 30 months, at the very least.


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       For these reasons, we cannot tell the basis for the district court’s decision to

sentence Baugher to 60 months on the access-device offense. See United States v.

Reid, 139 F.3d 1367, 1368 (11th Cir. 1998) (vacating and remanding for

resentencing where we could not tell the basis for the district court’s guideline

application decision). Based on the court’s comments at sentencing and its choice

of distinct sentences for each offense, it appears that the court may not have intended

to punish Baugher for absconding and related conduct when it sentenced him on the

access-device offense. But as far as we can tell, that’s what happened. Because we

are unsure of the district court’s reasons for imposing the sentence that it did, we

vacate and remand for resentencing.1

                                              C.

       As for Baugher’s remaining arguments, we decline to consider them at this

time. Because the chosen sentence, as well as its underlying justification, may

change upon remand, we do not at this time opine on its reasonableness. See United

States v. Gupta, 572 F.3d 878, 888 (11th Cir. 2009) (declining to address the

reasonableness of the sentence because it could change on remand).

                                             III.




       1
          The government argues that the district court had the authority to impose the sentence
that it did. And that may well be true. We express no opinion on that issue. On this record,
however, we are unable to exercise meaningful appellate review of Baugher’s sentence for the
reasons we have described.
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      In sum, we affirm the district court’s denial of a minor-role reduction, but we

vacate Baugher’s sentence and remand for resentencing for the reasons stated herein.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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