             Case: 12-15794    Date Filed: 09/25/2013   Page: 1 of 6


                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-15794
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 8:11-cr-00269-SDM-AEP-1


UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                    versus

CRISTIE FAY BOTTORFF,
a.k.a. Cristie Fay Sehorne,

                                                     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:
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      Cristie Fay Bottorff appeals her total life sentence for her involvement in a

murder-for-hire plot. She was indicted and, without a plea agreement, pleaded

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, Ms. Botorff

admitted that she and her now-husband Jerry Botorff, conspired with Michael

Garcia and Luis Lopez to have Lopez kill her then-husband Thomas Lee Sehorne

so that Ms. Botorff could collect insurance proceeds. Lopez shot and killed

Sehorne on June 7, 2007, and Ms. Bottorff collected $1 million.

      Ms. 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. Ms. Bottorff further

argues that her 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




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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

standard. Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007). A

defendant challenging her 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.

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 reasonable [sic] necessary to achieve the statutory purposes of sentencing.”
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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)

(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.


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        Ms. Bottorff’s sentence was procedurally and substantively reasonable and

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

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

mandatory minimum of life imprisonment in 18 U.S.C. § 1958.2 In granting the

government’s substantial assistance motion, the court considered the parties’

arguments then calculated a new lower Guideline range, 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 the murder-for-hire scheme was a cold-blooded

operation that would be unthinkable to a normal person, and Sehorne was shot

outside his home and left in a pool of blood for hours before his child saw his

body.

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

reasons for imposing an upward variance:



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

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

mandatory minimum penalty for the offenses of conviction. Under these

circumstances, Ms. Bottorff cannot meet her 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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