             Case: 17-15330    Date Filed: 01/09/2019   Page: 1 of 23


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                          Nos. 17-15330; 17-15338
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket Nos. 6:16-cr-00214-CEM-GJK-1,
                         6:17-cr-00089-CEM-KRS-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                     versus

MICHAEL ANTHONY NELSON,

                                                             Defendant-Appellant.

                         ________________________

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

                                (January 9, 2019)

Before BRANCH, HULL and JULIE CARNES, Circuit Judges.

PER CURIAM:

      In these consolidated appeals, Michael Nelson challenges his concurrent 30-

month and 24-month custodial sentences imposed upon revocation of his two
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supervised release terms. On appeal, Nelson argues that his revocation sentences

are procedurally and substantively unreasonable. After review, we affirm.

                                I. BACKGROUND

A.     Prior Fraud Convictions in Florida and Texas

       Nelson has an extensive history of fraud and has been convicted of fraud-

related offenses four times in federal court. In 1999 in Florida, Nelson’s first

federal fraud conviction involved a wire fraud, bank fraud, and money laundering

conspiracy whereby Nelson created a corporation through which he secured

fraudulent loans for office and computer equipment. The district court in the

Middle District of Florida sentenced Nelson to 60 months’ imprisonment, followed

by three years of supervised release, and ordered him to pay $723,232.29 in

restitution.

       While on pretrial release in the 1999 Florida-fraud case, Nelson absconded

and committed an additional fraud-related offense in Texas. In the Texas case,

Nelson applied for a loan using the name and social security number of an attorney

also named Michael Nelson. After Nelson was convicted of fraudulent use of a

social security number, the district court in the Northern District of Texas imposed

a 12-month sentence, followed by three years of supervised release. In February

2004, Nelson began serving his supervised release terms for both the Florida and

Texas federal fraud convictions.


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B.    2010 Fraud Convictions in Illinois

      In June 2010, a jury in the Northern District Court of Illinois convicted

Nelson of six counts of bank fraud, in violation of 18 U.S.C. § 1344(1), and two

counts of mail fraud, in violation of 18 U.S.C. § 1341. Specifically, between

February 2004 and January 2005 (i.e., while Nelson was on supervised release for

the Florida and Texas fraud convictions), Nelson, using an alias, set up a company

in Illinois ostensibly offering consulting services to help churches obtain financing

and purchase property. Nelson, purporting to act as the churches’ escrow agent,

used the company to defraud the churches and various banks.

      The federal district court in Illinois imposed a total 96-month sentence,

followed by five years of supervised release, and ordered Nelson to pay

$723,867.56 in restitution. Nelson’s supervised release conditions included

submitting a truthful monthly report to his probation officer, answering his

probation officer’s questions truthfully, notifying his probation officer ten days

before an employment change, and paying monthly restitution.

C.    2013 Fraud Convictions in California

      In December 2010, while Nelson was serving his prison sentence in the

Illinois case, a federal grand jury in the Northern District of California charged

Nelson with 16 fraud-related counts. In 2013, Nelson pled guilty to one count of

wire fraud, in violation of 18 U.S.C. § 1343, one count of computer fraud, in


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violation of 18 U.S.C. § 1030(a)(4), and one count of aggravated identity theft, in

violation of 18 U.S.C. § 1028A. In this fraud scheme, between January and April

2006 and before his arrest in Illinois, Nelson, who is not a licensed attorney,

impersonated a California lawyer, also named Michael Nelson. Nelson then, inter

alia, created a law firm and a website, applied for credit, solicited clients, and

received retainer funds from clients.

      The federal district court in California imposed a 42-month sentence,

followed by three years of supervised release, and ordered Nelson to pay $102,800

in restitution. Nelson’s supervised release conditions included many of the same

conditions as his Illinois supervised release and an additional prohibition against

maintaining a position of fiduciary capacity without first obtaining his probation

officer’s permission.

      Nelson completed his custodial sentences and began his supervised release

terms on April 25, 2016. The Middle District Court in Florida assumed

jurisdiction over Nelson’s supervised release in his California case in November

2016 and his Illinois case in April 2017.

E.    2017 Petitions for Revocation of Supervised Release

      In March 2017, Nelson’s probation officer in Florida filed a violation report

and a petition to revoke Nelson’s supervised release in his California case. Later,

Nelson’s probation officer filed a substantially similar violation report and a


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petition to revoke Nelson’s supervised release in his Illinois case based on the

same conduct. The two petitions and violation reports related to Nelson’s

employment as a mediator at a Florida company initially called Marsha Ward and

Team Ombudsmen and later renamed Team Ombudsmen, LLC. The petitions

alleged multiple violations of the terms of Nelson’s supervised release, including

that Nelson had: (1) maintained a position of fiduciary capacity at Team

Ombudsmen in Florida without his probation officer’s permission, verified by

checks Nelson received from clients of the company but made payable directly to

him and deposited into his personal account; (2) submitted untruthful monthly

reports; (3) failed to answer his probation officer’s questions truthfully; and (4)

failed to notify his probation officer of his change in employment.

      According to the violation reports, Nelson formed the Florida company with

a Texas woman named Marsha Ward, who was the cousin of an inmate Nelson

befriended in prison. Ward asked that her name be removed from the business

when she realized Nelson was engaged in questionable business practices.

Employees of the Florida company told the probation officer that Nelson ran the

company, paid their wages, and made hiring and firing decisions. Some employees

complained that they had not received paychecks. A company directory listed

Nelson as the “Global Chief Litigation Liaison and Compliance Officer.” The




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client checks Nelson deposited into his personal account were for “retainer fees,”

some related to litigation or audits.

      The violation reports also stated that Suzanne and Matthew Brown hired

Marsha Ward and Team Ombudsmen to represent their son, who was in federal

custody, by, among other things, preparing a 28 U.S.C. § 2255 motion. Between

December 2015 and April 2016, the Browns sent Nelson several “retainer”

cashier’s checks totaling $8,800, which Nelson deposited into his personal bank

account. The Browns reported to Nelson’s Florida probation officer that they had

paid Nelson and Team Ombudsmen a total of $50,000 to help their son.

      The Florida probation officer attached to the violation reports a December

16, 2015 letter to the Browns from Nelson as Senior Divisional Chief of Marsha

Ward and Team Ombudsmen, which detailed the terms of an “Agreement for

Professional Services.” The 2015 letter described the professional services to be

provided as “Litigation, Research and Litigation Support for” the Browns’ son.

The Florida probation officer also attached copies of the Browns’ cashier’s checks

made out to Nelson, checks to Nelson from another Team Ombudsman client, Ella

Reid, and Nelson’s personal bank statements showing that the checks were

deposited into Nelson’s personal account.

      On October 21, 2016, the Florida probation officer visited Nelson at his

home, and Nelson denied accepting payments from Team Ombudsman’s clients or


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dealing with the company’s payroll. On the same day, security camera recordings

showed Nelson removing computers, printers, and documents from the business.

A few days later, employees reported to the probation officer that Team

Ombudsmen’s business had been shut down.

       Later, the Florida probation officer discovered that in February 2017,

Nelson, without notifying the probation officer, created an online church,

ostensibly to support the LGBTQ community and individuals affected by the Pulse

nightclub shooting incident. Through a donate button on the website and a

GoFundMe page, Nelson had solicited and received $293,000 in donations.

F.     Initial Revocation Hearing

       At the initial revocation hearing, Nelson, by agreement of the parties,

admitted to Violation 3 in the Illinois-case petition and Violation 7 in the

California-case petition, as amended in open court. Those two violations, as

amended, alleged that Nelson had made unspecified untruthful statements to his

probation officer. In exchange, the government dismissed the remaining alleged

violations and agreed to recommend an eight-month sentence.1




       1
         After a preliminary hearing, a magistrate judge dismissed several alleged violations in
each petition—pertaining to Nelson’s filing of a monthly report in June 2016 and his failure to
report his change in employment with the LGBTQ church—because the government had
presented insufficient evidence to support probable cause. The government dismissed another
alleged violation relating to Nelson’s failure to report $4,000 in pay because the government
admitted the check was returned for insufficient funds.
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      The district court advised Nelson that it would consider the parties’

recommendation at the forthcoming sentencing, but that the requested eight-month

sentence would not bind the court. The district court noted that if the parties

agreed and the agreement was reasonable and within the calculated guidelines

range, “that seem[ed] pretty reasonable to [the court].”

      Nelson admitted that he had failed to answer truthfully questions posed by

his Florida probation officer. Without objection, the district court calculated an

advisory guidelines range of 7 to 13 months’ imprisonment. The district court

noted that the statutory maximum prison term was three years and the statutory

maximum term of supervised release was five years. After ensuring that Nelson’s

admission was free and voluntary, the district court accepted Nelson’s plea to the

two amended violations and postponed sentencing.

G.    Telephone Conference

      The probation officer’s sentencing memorandum filed in each case

recommended concurrent eight-month sentences. The probation officer noted that:

(1) “[s]ince 1998, Nelson has either been in prison for fraudulent criminal activity

or on supervised release, which he has never completed successfully”; (2) Nelson

posed a risk to the community because of his continued criminal activity, and there

was a great need to protect the public from any further crimes that Nelson might




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commit; and (3) “Nelson remained undeterred from a life of crime and fraud [and]

has shown an utter disregard for the conditions set forth by the [c]ourt.”

      Prior to sentencing, the district court held a telephone conference with

defense counsel and the prosecutor. The district court stated that it had watched a

video of victim-impact statements (by the Browns) and “from that video, [it]

picked up the file and went through the entire writeup from Probation, and from

that, [it] just started digging deeper and deeper into the file.” The district court

advised the parties that it was no longer inclined to accept the recommended eight-

month sentence “based on [its] review of the entire file,” and offered to let Nelson

withdraw his admission, “notwithstanding the fact that [the court had] told him

already . . . that [it] would not be bound by any recommendation to begin with.”

Nelson’s counsel stated that she would meet with Nelson and review everything

with him before sentencing. The district court assured defense counsel that she

could file whatever motion she felt was appropriate.

      After the telephone conference, Nelson’s counsel filed a sentencing

memorandum requesting that the district court “honor the plea agreement” and

impose concurrent eight-month sentences, followed by two years of supervised

release. Nelson’s counsel also argued that: (1) Nelson pled guilty only to making

untruthful statements to his probation officer and any conduct alleged in the

dismissed allegations should not be considered in arriving at his sentence; and (2)


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the district court should not rely upon the Browns’ victim-impact video because

their claims in the video were inconsistent with the facts and the violations as

charged in the petitions.

H.     Final Revocation Hearing and Sentencing

       At the November 3, 2017 revocation hearing, the district court adopted the

guidelines calculations without objection, finding that with Grade C violations and

a criminal history category of V, Nelson’s advisory guidelines range was 7 to 13

months.

       Nelson’s counsel acknowledged that the district court was not bound by the

plea agreement but urged the district court to impose the recommended concurrent

eight-month sentences. In mitigation, Nelson pointed to the recent death of his

mother while he was in custody and his medical issues, which included his HIV

positive status.

       Nelson also argued that the Browns’ victim-impact video related to alleged

criminal conduct the government had chosen not to pursue and the Browns’

statements constituted unreliable hearsay that was contradicted by other evidence

in the record.2 In response, the district court agreed that the video was of “limited


       2
        Nelson identifies the following statements by the Browns in the video that he contends
were inconsistent with other evidence in the record: (1) that Nelson told the Browns he was an
attorney (when the letter Nelson sent to the Browns on December 16, 2015 disavowed that
anyone at Team Ombudsmen was an attorney); (2) that the Browns paid Nelson a total of
$50,000 (when the cashiers’ checks and bank account statements showed they paid Nelson only
$8,800); (3) that Nelson did not perform any work for their son (when in fact their son signed
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reliability,” and explained that the video merely prompted the court “into a deeper

dive into the file where [it] learned a lot of things that [it] found troubling.”

       The district court stated that the offer for Nelson to withdraw his admission

was “still open,” and asked if defense counsel had spoken with Nelson about “the

advantages and disadvantages of withdrawing his admission at this point.”

Defense counsel stated that she and Nelson had talked at length, and Nelson had

decided not to withdraw his admission. The district court then confirmed with

Nelson that he did not want to withdraw his admission.

       Nelson then addressed the district court and stated, among other things, that

in addition to his HIV status, he also had Hepatitis A, B, and C, and liver damage,

and suffered from PTSD due to sexual abuse when he was a child. Nelson also

stressed his grief in losing his mother and his rehabilitation efforts, including

educational degrees he had earned while incarcerated.

       The government asked for the agreed-upon eight-month sentence. The

government admitted that, after investigation, it had declined to pursue criminal

prosecution of Nelson for the alleged conduct in the violation reports. The

government acknowledged that Nelson owed a substantial amount of unpaid




and filed a § 2255 motion prepared by Nelson); and (4) that Nelson agreed to do the work pro
bono (when Nelson’s December 16, 2015 letter listed a retainer of $2,500).
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restitution, had a significant history of fraud, and posed an economic risk to the

community.

      The district court stated that it was “very concerned” that Nelson posed a

major risk to the public’s economic safety given his criminal history. The district

court briefly summarized the circumstances of Nelson’s fraud in the California and

Illinois cases. In response to the district court’s questions, Nelson’s Florida

probation officer advised that: (1) in the California case, Nelson had paid only

$2,125 of the $102,800 owed in court-ordered restitution, and (2) in the Illinois

case, Nelson had paid only $175 of the $723,867.56 owed in court-ordered

restitution. The probation officer admitted to the district court that Nelson “was a

difficult person to supervise,” but that to protect the public he needed further

supervision upon his release.

      When the district court asked about the specific nature of Nelson’s

untruthful statements (the admitted Violation 3 in the Illinois petition and Violation

7 in the California petition), the Florida probation officer testified that, prior to

Nelson’s release from custody, Nelson informed him of Team Ombudsmen and

Nelson’s role as a mediator. Suspicious of Team Ombudsmen’s activities, the

probation officer questioned Nelson about the company and began to investigate

the company for fraud but found no identifiable victims or lost monetary amounts

until the Browns came forward. When the probation officer began to discuss what


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the Browns reported, Nelson objected on double- and triple-hearsay grounds. The

district court acknowledged Nelson’s hearsay concerns and stated that it would not

go “any deeper” with the probation officer’s testimony.

      Before announcing the sentence, the district court noted that Nelson had “a

long history of separating people from their money” and the court had “to look at

everything through that prism.” The district court noted that Nelson had been

difficult for probation to supervise and had accomplished “little to nothing” while

on supervised release. The district court explained that it had to balance Nelson’s

personal statement before the court with his actions over the course of a long

period of time and also consider the individuals victimized by his conduct.

      The district court revoked Nelson’s supervised release in both cases. In the

Illinois case, the district court imposed a 30-month sentence, followed by 30

months of supervised release. In the California case, the district court imposed a

concurrent 24-month sentence, followed by no supervised release. The district

court stated that it had considered the 18 U.S.C. § 3553(a) factors and the

probation officer’s sentencing recommendations and had decided to impose an

upward variance because Nelson: (1) remained a danger to society; (2) “paid little

to no restitution and accomplished little else while on supervised release”; and (3)

“remained undeterred from a life of crime and fraud [and] has shown an utter

disregard for the conditions set forth by the [c]ourt.” The district court further


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observed that, based on Nelson’s history and characteristics, an upward variance

was necessary to afford adequate deterrence to Nelson’s criminal conduct and to

protect the public from his further crimes.

      Nelson objected to the sentences imposed in both cases.

                                 II. DISCUSSION

      When a defendant violates a condition of supervised release, the district

court may revoke the supervised release term and impose a prison term after

considering certain factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C.

§ 3583(e)(3); United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006).

The relevant § 3553(a) factors the district court must consider are: (1) the nature

and circumstances of the offense and the history and characteristics of the

defendant; (2) the need for deterrence; (3) the need to protect the public from the

defendant’s further crimes; (4) the need to provide the defendant with needed

educational or vocational training or medical care; (5) the relevant guidelines

range; (6) pertinent policy statements of the Sentencing Commission; (7) the need

to avoid unwarranted sentencing disparities; and (8) the need to provide restitution

to victims. See 18 U.S.C. § 3583(e) (citing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D),

(a)(4)-(7)). The weight given to any specific § 3553(a) factor is committed to the

sound discretion of the district court. United States v. Clay, 483 F.3d 739, 743

(11th Cir. 2007).


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      We review a sentence imposed upon revocation of supervised release for

reasonableness under the deferential abuse of discretion standard. Sweeting, 437

F.3d at 1106-07. We first consider whether the district committed any significant

procedural error and then whether the sentence is substantively reasonable in light

of the relevant § 3553(a) factors and the totality of the circumstances. United

States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). The party who challenges

the sentence bears the burden to show the sentence is unreasonable. United States

v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      If the district court decides to impose an upward variance, “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 v. United States, 552 U.S. 38, 50,

128 S. Ct. 586, 597 (2007)). A district court is “free to consider any information

relevant to [a defendant’s] background, character, and conduct in imposing an

upward variance.” Tome, 611 F.3d at 1379 (quotation marks omitted). We will

vacate such 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.” United States v. Shaw, 560 F.3d 1230,

1238 (11th Cir. 2009) (internal quotation marks omitted).


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A.    Procedural Reasonableness

      Nelson contends his sentences are procedurally unreasonable because the

district court relied on hearsay statements from the Browns in their victim-impact

video and from Nelson’s probation officer in testimony at the revocation hearing.

      Although the Federal Rules of Evidence do not apply to supervised release

revocation proceedings, hearsay statements may be admissible provided minimal

due process requirements are met. United State v. Frazier, 26 F.3d 110, 113-14

(11th Cir. 1994). In deciding whether to admit hearsay evidence in a revocation

hearing, the district court must balance the defendant’s right to confront adverse

witnesses against the ground asserted by the government for denying

confrontation. Id. at 114. A defendant has a due process right, however, not to be

sentenced based on false or unreliable information. United States v. Ghertler, 605

F.3d 1256, 1269 (11th Cir. 2010). To prevail on such a due process challenge, “a

defendant must show (1) that the challenged evidence is materially false or

unreliable and (2) that it actually served as the basis for the sentence.” Id.

(emphasis added); United States v. Taylor, 931 F.2d 842, 847 (11th Cir. 1991).

      With respect to the Browns’ victim-impact video, even assuming arguendo

that in the video the Browns made materially false and unreliable statements about

how much they paid Nelson, what work Nelson performed, and whether he held

himself out to them as an attorney, Nelson has not shown that the video or any


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statements in it served as the basis for his sentences. In fact, the district court

agreed that the video was not particularly reliable. The district court explained that

the video merely had prompted it to look more closely at Nelson’s entire criminal

file, where it learned about the full extent of Nelson’s criminal history of fraud and

the substantial amount of restitution ordered in the two underlying cases. In other

words, contrary to Nelson’s claims on appeal, it was not the Browns’ video, but the

troubling information the district court found in Nelson’s file that led the district

court to reject the parties’ recommendation for eight-month concurrent sentences.

      As for the probation officer’s testimony, Nelson failed to show that his

statements were either materially false or unreliable. At the revocation hearing, the

probation officer’s testimony was limited to Nelson’s unpaid restitution balances

from his underlying cases, his opinion regarding the need for Nelson’s continued

supervision, and a description of the beginning of his investigation into Team

Ombudsmen, including his conversations with Nelson about his employment as a

mediator. Nelson has not contended, much less shown, that any of these

statements were false or unreliable.

      The probation officer stated that the Browns contacted him claiming to be

victims of Nelson’s alleged fraud, but that statement is corroborated by the

documents the Browns gave to the probation officer. Nelson did not object to

these documents, which were attached to the petitions for revocation and the


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violation reports. These documents showed that the Browns entered into a contract

with Nelson and Team Ombudsmen for legal services, sent several cashier’s

checks as payment for those services directly to Nelson, and Nelson deposited

them into his personal bank account.

      Nelson also argues that the district court erred by not performing a Frazier

balancing test before permitting the probation officer’s testimony about the

Browns. Any error in that regard was harmless, however, given that Nelson has

not shown the district court relied on any hearsay statements from the Browns. See

Taylor, 931 F.2d at 847.

      Finally, Nelson argues that his sentence is procedurally unreasonable

because the district court imposed an upward variance based on conduct other than

Nelson’s unspecified lie to his probation officer.

      Contrary to Nelson’s claim, the district court was not limited to looking only

at Violations 3 and 7—that he made untruthful statements—which were the basis

for the revocation of the defendant’s supervised release terms. Instead, the district

court, in determining the appropriate sentence, considers all the pertinent § 3553(a)

factors, two of which are the nature and circumstances of the two offenses and the

history and characteristics of the defendant. Further, under federal law, “[n]o

limitation shall be placed on the information concerning the background, character,

and conduct of a person convicted of any offense which a court of the United


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States may receive and consider for purpose of imposing an appropriate sentence.”

18 U.S.C. § 3661. Likewise, the Sentencing Guidelines also note that the

information a court may consider in formulating a sentence is broad and includes

evidence that would not be admissible at trial so long as the information has

“sufficient indicia of reliability.” U.S.S.G. § 6A1.3(a). In fact, sentencing courts

may even consider uncharged and acquitted conduct if it is established by a

preponderance of the evidence. United States v. Smith, 741 F.3d 1211, 1226 (11th

Cir. 2013).

      Here, although the Browns’ video was not considered reliable, the district

court could still consider the Florida probation officer’s testimony about the

Browns and the documents related to the Browns that were attached to the

violation reports. This evidence proved by a preponderance of the evidence that

Nelson, acting as Team Ombudsmen’s Senior Divisional Chief, entered into an

agreement to provide the Browns’ son with legal services, that the Browns sent

cashier’s checks totaling $8,800 made out to Nelson as a retainer to pay for this

legal work, and that Nelson deposited the Browns’ cashier’s checks into his

personal bank account. In his violation report, the Florida probation officer stated

that when he visited Nelson’s residence on October 21, 2016, to discuss Nelson’s

employment, Nelson denied accepting payments from Team Ombudsmen clients.




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Indeed, Nelson does not appear to dispute any of these facts, which amply support

the admitted violations.

       To the extent Nelson claims the district court relied upon conduct underlying

the alleged violations that the government dismissed, the record does not support

this assertion. 3 None of that conduct was discussed during the revocation hearing,

and the district court did not refer to any of it in explaining why it had imposed an

upward variance.

       In sum, Nelson has not shown that his sentence is procedurally

unreasonable.

B.     Substantive Reasonableness

       Nelson also has not shown that his total 30-month prison sentence is

substantively unreasonable. The parties agree that, with a Grade C supervised

release violation and criminal history of V, Nelson’s recommended imprisonment

range under advisory Chapter 7 of the Sentencing Guidelines was 7 to 13 months’

imprisonment. See U.S.S.G. § 7B1.4(a). In addition, the parties do not dispute

that the district court could have imposed a prison term of up to three years in the



       3
         Nelson’s reliance on United States v. Ellis, 419 F.3d 1189, 1193 (11th Cir. 2005), is
misplaced. Here, the district court did not impose an upward departure under the Sentencing
Guidelines but rather an upward variance from the recommended advisory guidelines range
based on the § 3553(a) sentencing factors and the totality of the circumstances. Cf. Ellis, 419
F.3d at 1193 (concluding a sentencing court’s reliance on conduct underlying a dismissed charge
to support a departure under U.S.S.G. § 5K2.7 should be limited to situations in which the
conduct “sheds further light on the true nature of the offense of conviction”).
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Illinois case and up to two years in the California case. See 18 U.S.C.

§§ 3559(a)(2), (a)(3), 3583(e)(3).

        The district court explicitly stated that it had considered the § 3553(a)

factors and cited in particular the need to protect the public from any further

criminal activity by Nelson. The district court stressed Nelson’s long history of

defrauding people, which the district court described as “an ongoing theme” that

had made Nelson “well equipped at separating people from their money.” The

district court also noted that Nelson had been difficult to supervise and had not

accomplished much while on supervised release. As justification for the upward

variance, the district court cited Nelson’s continuing danger to society, his lack of

progress in paying restitution, and his utter disregard for the conditions of

supervision, which suggested Nelson was not ready or willing to live a law-abiding

life.

        We disagree with Nelson that the district court based his sentences entirely

on his outstanding restitution amounts or gave that factor too much weight. While

the district court certainly considered Nelson’s failure to make any real progress in

paying court-ordered restitution, the record shows that the district court also

considered Nelson’s personal statements to the court, his criminal history, and his




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other conduct while on supervised release, not least of which would be his

admitted false statements to his probation officer.4

       Moreover, it was well within the district court’s discretion to give particular

weight to Nelson’s unpaid restitution, his criminal history, and his unwillingness to

comply with the conditions of his supervised release and to find that Nelson’s

mitigating evidence was insufficient to warrant the requested eight-month

sentence. Nelson’s criminal history readily reveals him to be a career con artist

who has never managed to complete a term of supervised release without engaging

in new fraudulent activity. Nelson’s past fraud schemes involved establishing

businesses through which Nelson bilked clients and banks of more than a million

dollars. This time, upon his release, Nelson was again working for a business that

offered legal services to clients. Regardless of whether Nelson in fact committed

any fraud while at Team Ombudsmen, he lied to his probation officer about

depositing payments from clients into his personal account. Considering Nelson’s

past crimes, his failure to answer truthfully his probation officer’s questions about

his new business activity was more than a mere technical violation of his

supervised release condition. As a former con man, Nelson must be scrupulous




       4
         Given that Nelson’s sentences were not based solely on his failure to pay restitution,
there is no merit to Nelson’s equal protection challenge to his sentences. See United States v.
Plate, 839 F.3d 950, 956 (11th Cir. 2016) (holding that incarcerating a person solely based on his
inability to pay a fine or restitution violates equal protection principles).
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             Case: 17-15330     Date Filed: 01/09/2019   Page: 23 of 23


with the truth while on supervision and in all his dealings with his probation

officer.

       In conclusion, we cannot say the district court’s decision to impose an

upward variance in this case was an abuse of discretion. On this record, Nelson’s

total 30-month sentence was both procedurally and substantively reasonable.

       AFFIRMED.




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