             Case: 12-15231    Date Filed: 07/18/2013   Page: 1 of 5


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-15231
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 2:10-cr-14096-JEM-3



UNITED STATES OF AMERICA,

                                                        Plaintiff - Appellee,

                                     versus

BHARDWAAJ SEECHARAN,
a.k.a. Deo Seecharan,

                                                        Defendant - Appellant.

                         ________________________

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

                                (July 18, 2013)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Bhardwaaj Seecharan pleaded guilty to conspiracy to commit bank fraud, in

violation of 18 U.S.C. § 1349, and was sentenced to 60 months’ imprisonment. He
              Case: 12-15231     Date Filed: 07/18/2013   Page: 2 of 5


appeals that sentence, contending it is procedurally and substantively unreasonable.

After careful review, we vacate Seecharan’s sentence and remand for resentencing.

       Seecharan pleaded guilty to conspiracy to commit bank fraud in connection

with a scheme to defraud mortgage lenders. Prior to sentencing, the probation

officer prepared a presentence investigation report (PSI), which set Seecharan’s

total offense level at 31, resulting in a guidelines range of 108 to 135 months’

imprisonment. The PSI indicated that Seecharan “was involved in a life altering

car accident” in 1982 that required multiple surgeries and left him with “chronic

deformities,” mobility problems, and pain. He underwent a lumbar decompression

and inter-body fusion of his lumbar spine in April 2012, requiring significant

rehabilitation. The PSI also noted that Seecharan may require future surgeries on

his legs.

       At sentencing, Seecharan requested that the district court impose a sentence

of home confinement, asserting he would not receive “medical care . . . in the most

effective manner” if he were imprisoned. 18 U.S.C. § 3553(a)(2)(D). In support

of this claim, Seecharan submitted a letter from Dr. Steven Weber, who performed

Seecharan’s lumbar fusion. Dr. Weber opined that “incarceration may result in

significant deterioration to [Seecharan’s] healing in his lumbar spine on a

permanent basis” because a public facility would increase his risk of infection and

therefore “would certainly be debilitating for his overall condition and may be


                                          2
               Case: 12-15231     Date Filed: 07/18/2013    Page: 3 of 5


significant for his overall state of health.” He also indicated that Seecharan “may

require significant assistance just to get out of bed based on the status of his back

and his lower extremities.” The district court continued Seecharan’s sentencing

and directed the probation officer to contact the Bureau of Prisons (BOP) to find

out if it could adequately care for Seecharan. Seecharan then submitted additional

evidence, including a letter from Dr. Calvin Gibson, who had treated Seecharan for

several years, which stated that, in his “professional medical opinion . . . the

incarceration of Mr. Seecharan would be detrimental to his health and lead to

possible loss of limb(s) and possibly his life.”

      When the court reconvened, it stated that the BOP had indicated it could

“handle anything” with regard to an inmate’s medical needs. The court then found

that Seecharan’s medical condition did not justify a sentence of home confinement,

but that a downward variance to 60 months’ imprisonment was appropriate. This

is Seecharan’s appeal.

      We review the imposition of a sentence for an abuse of discretion. United

States v. Overstreet, 713 F.3d 627, 636 (11th Cir. 2013). “First, we determine

whether the district court committed any significant procedural error and, second,

whether the sentence was substantively reasonable under the totality of the

circumstances.” Id. (internal quotation marks omitted). A sentence is procedurally

unreasonable if the district court selected it based on clearly erroneous facts.


                                           3
                Case: 12-15231       Date Filed: 07/18/2013      Page: 4 of 5


United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010). A factual

finding is clearly erroneous where the record lacks substantial evidence to support

it. United States v. Robinson, 493 F.3d 1322, 1330 (11th Cir. 2007).

       Seecharan argues that his sentence is procedurally unreasonable because it

was based on the district court’s clearly erroneous determination that he would

receive necessary and effective medical care in prison. We agree. The district

court imposed a sentence of imprisonment based on a report it purportedly

received indicating that the BOP could “handle anything” with regard to inmates’

medical needs. But after a thorough independent review of the record, we cannot

locate such a report. 1 Hence, the district court’s finding that Seecharan would

receive effective medical care in prison is clearly erroneous because there is no

evidence at all in the record controverting the opinions of his treating physicians

that imprisonment would be significantly detrimental to his health. Id.; cf. Porter

v. Singletary, 49 F.3d 1483, 1488 n.8 (11th Cir. 1995) (noting that a district court’s

statement alone does not establish a fact when there is nothing in the record to


1
  After sentencing, Seecharan filed a motion in this court for release pending appeal. In
opposition, the government filed the declaration of Dr. Ivan Negron, a BOP physician, indicating
that the BOP “has the capability to provide Mr. Seecharan with appropriate . . . care.” Because
this evidence was not part of the record before the district court, we do not consider it. See
United States v. Funt, 896 F.2d 1288, 1300 (11th Cir. 1990) (“[T]he court of appeals may
consider the information relied upon by the district court in imposing sentence when reviewing
allegations that the sentence was imposed in reliance upon erroneous information or
assumptions.”); see also Selman v. Cobb Cnty. Sch. Dist., 449 F.3d 1320, 1332 (11th Cir. 2006)
(“In deciding issues on appeal we consider only evidence that was part of the record before the
district court.”).
                                               4
                Case: 12-15231       Date Filed: 07/18/2013       Page: 5 of 5


support it). And because the district court selected its sentence based on this

finding, Seecharan’s sentence is procedurally unreasonable. 2 Rodriguez, 628 F.3d

at 1264.

       For the above reasons, we vacate Seecharan’s sentence and remand for

resentencing in a manner consistent with this opinion.

       VACATED AND REMANDED. 3




2
 The government does not argue that the district court’s error was harmless.
3
 Because we vacate and remand, we do not consider Seecharan’s alternative arguments that his
sentence was procedurally unreasonable because the district court failed to consider 18 U.S.C. §
3553(a)(2)(D) and that his sentence was substantively unreasonable.
                                                5
