 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 15, 2013                  Decided July 1, 2014

                         No. 12-3049

                UNITED STATES OF AMERICA,
                        APPELLEE

                               v.

                  CHESTER D. RANSOM, JR.,
                       APPELLANT


                  Consolidated with 12-3075


        Appeals from the United States District Court
                for the District of Columbia
                    (No. 1:11-cr-00357)


    Matthew G. Kaiser, appointed by the court, argued the
cause and filed the joint briefs for appellant Bryan W. Talbott.

    Richard Seligman, appointed by the court, argued the cause
and filed the joint briefs for appellant Chester D. Ransom, Jr.

    Jay Apperson, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Ronald C. Machen, Jr.,
U.S. Attorney, and Elizabeth Trosman and Suzanne Grealy Curt,
Assistant U.S. Attorneys.
                               2

    Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,
and SENTELLE, Senior Circuit Judge.

   Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

     SENTELLE, Senior Circuit Judge: Appellants Chester
Ransom and Bryan Talbott pled guilty to fraud charges in the
district court in connection with the operation of their property
management company. Although their plea agreements
stipulated the range of prison sentences under the United States
Sentencing Guidelines, the district court sentenced both Ransom
and Talbott to above-Guidelines sentences. Both appellants
claim that the district court committed procedural and
substantive errors in entering the sentences. For the reasons set
forth below, we conclude that the district court committed no
error, and therefore affirm the judgment of the district court.

                         Background

    From 2004 until 2011 appellants Chester Ransom and
Bryan Talbott owned and operated a property management
company. In 2012 the government charged Ransom and Talbott,
in connection with their running of the company, with
conspiracy to commit bank fraud; conspiracy to commit mail
fraud; and conspiracy to defraud the United States. Both
Ransom and Talbott signed plea agreements with the
government, acknowledging their guilt of the charges. The plea
agreements contained waiver-of-appeal clauses. Each plea
agreement also contained a stipulated United States Sentencing
Guidelines (“USSG” or “Guidelines”) range of 46-57 months.
At Ransom’s sentencing hearing, the district court calculated the
Guidelines range at the stipulated 46-57 months, but sentenced
Ransom to an above-Guidelines sentence of 72 months.
Ransom did not object to his sentence. At Talbott’s sentencing
                                 3

hearing, the court calculated the Guidelines range at 63-78
months, but imposed an above-Guidelines sentence of 120
months. Talbott also did not object to his sentence. In neither
plea agreement did the Sentencing Guidelines stipulation
purport to bind the sentencing court or promise a specific
sentence. Indeed, each agreement explicitly described the
Guidelines as non-mandatory and specified that the decision on
sentencing would be made by the presiding judge.

    Ransom and Talbott now appeal their above-Guidelines
sentences.

                            Discussion

                      A. Waiver of Appeal

     Both Ransom and Talbott acknowledge that in their plea
agreements they waived their right to appeal their sentences.
But Talbott notes that in the plea agreement both he and the
government agreed that neither party would seek a sentencing
departure from what was stated in the agreement. Since the
government subsequently asked to be relieved of this agreement,
seeking an upward departure, Talbott argues then he should be
relieved of his waiver of appeal. The government replies that in
light of its departure request it is not seeking to enforce Talbott’s
waiver.

     Ransom, in turn, argues that, notwithstanding the appeal
waiver in his plea agreement, he in fact never waived his rights
because his lawyer was ineffective and the sentencing court did
not follow fair sentencing procedures. The government replies
that Ransom knowingly and voluntarily waived his right to
appeal his sentence, that at his plea hearing under Rule 11 of the
Federal Rules of Criminal Procedure Ransom swore that he had
read, understood, and signed the plea agreement, and that
                                 4

Ransom was not prejudiced by any alleged failure on the part of
his counsel. The government further replies that it is clear from
the record that the sentencing procedures were fair. We need
not decide whether Ransom’s appeal waiver should stand,
however, since we determine that even if Ransom had not
waived his right to appeal, his arguments made on appeal are
meritless.

           B. Arguments Made on Appeal by Ransom

     Ransom argues (as does Talbott, see section C below) that
his sentence was both procedurally flawed and substantively
unreasonable. First, he contends that at sentencing the district
court erred procedurally when it imposed a Guidelines sentence
of 72 months—15 months above the 46-57 months Guidelines
range—without proper explanation on the record as to why a
sentence above the Guidelines was being imposed. See 18
U.S.C. § 3553(c)(2) (if the court imposes a sentence outside the
Guidelines range then the court must state “the specific reason”
for the variance). Ransom acknowledges that at sentencing he
did not object to his sentence. Consequently, we review the
district court’s sentencing procedures for plain error. See United
States v. Locke, 664 F.3d 353, 356 (D.C. Cir. 2011) (“Because
Locke did not challenge the adequacy of the district court’s
statement of reasons below, we review her claim for plain
error.”).

     Ransom asserts that the only explanations given by the
district court for his above-Guidelines sentence were the number
of victims, abuse of trust, and the commission of the instant
offense while he was on probation. Concerning the number of
victims, Ransom claims that this was already taken into account
by the Guidelines. Concerning an abuse of trust, Ransom claims
that this issue was not addressed by the presentence report and
that it is not at all clear that it would apply in his case. Finally,
                                  5

concerning the commission of the instant offense while he was
on probation, Ransom claims that this too was already taken into
account by the Guidelines. Taking all of this into consideration,
Ransom contends that the district court failed to explain
adequately the reason for the sentence it imposed on him and
therefore committed plain error.

     To prevail under the plain error standard, an appellant must
“demonstrate that the district court: (1) committed error; (2) that
is plain; and (3) that affects [his] substantial rights,” and “[i]f all
three conditions are met, and if the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings,
an appellate court may then exercise its discretion to notice a
forfeited error.” Id. (internal citations and alterations omitted).
At sentencing, the district court gave a detailed explanation for
its above-Guidelines sentence, including identifying specific
factors that it considered under 18 U.S.C. § 3553(a), and the
court’s explanation was both extensive and individualized.

     In arriving at Ransom’s above-Guidelines sentence, the
district court considered the underlying facts of Ransom’s
criminal past, including having operated with Talbott a property
management company that embezzled from its clients—the
same type of offense that was now before the court. The court
also considered that in the present case Ransom’s clients trusted
him with their money and their property, that he abused that
trust, and that this abuse of trust was not included in Ransom’s
Guidelines calculation. The district court further made clear in
imposing sentence that it considered the number of victims who
submitted victim impact statements, which detailed Ransom’s
wrongdoing and the severe harm that he caused them. Finally,
the district court echoed its detailed explanation for an above-
                                  6

Guidelines sentence in its written Statement of Reasons.* See 18
U.S.C. § 3553(c)(2) (if an outside Guidelines sentence is
imposed the “reasons must . . . be stated with specificity in a
statement of reasons form . . . ”). We conclude that procedurally
the district court committed no error, let alone plain error, in
sentencing Ransom.

                           * * * * *

     Second, Ransom argues that his sentence was substantively
unreasonable. In particular, Ransom asserts that the district
court gave no compelling reasons for imposing a sentence 15
months in excess of the Guidelines. See In re Sealed Case, 527
F.3d 188, 191 (D.C. Cir. 2008) (“If the court decides to impose
a sentence outside the Guidelines, it ‘must consider the extent of
the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.’” (quoting
Gall v. United States, 552 U.S. 38, 50 (2007))). In support of
this contention, Ransom relies on what he deems an
inconsistency in the court’s rationale. He points out that the
court accepted the presentence report recommendation that the
defendant receive a 3-point reduction in the Guidelines
calculation based on his acceptance of responsibility. See
U.S.S.G. § 3E1.1(a) & (b). He then points out that the court
stated that a justification for the upward variance was Ransom’s
lack of remorse.          These two elements of the court’s
consideration are not inherently inconsistent. Without Ransom’s
early admissions of his involvement in the crime and assistance
in the investigation, the court could nonetheless have raised the
sentence but starting from a higher baseline. A defendant who


        *
          The written Statement of Reasons for both Ransom’s and
Talbott’s sentences remain under seal except to the extent this opinion
refers to information therein, see United States v. Wilson, 605 F.3d
985, 1036 n.7 (D.C. Cir. 2010).
                                7

admits his guilt and assists in an investigation may be indeed
remorseful, or he may simply be practical enough to know that
he is assisting his cause.

     Furthermore, at the time of sentencing, Ransom, after
repeated requests, had still not submitted a financial statement
as contemplated at the time of the plea agreement. As the court
explicitly stated at sentencing, “How can he get credit for
acceptance of responsibility and for complying with the plea
agreement if he hasn’t done that? That’s like the most basic
thing.” Ransom also states that the district court justified the
variance because Ransom committed the instant offense while
on probation for a similar offense, but that the court failed to
take into account that the Guidelines had already increased his
criminal history by two points based on the same aggravating
circumstance. As one of our sister circuits has noted, it is not
error for a district court to enter sentencing “variances based on
factors already taken into account by the Advisory Guidelines,”
in cases in which “the Guidelines do not fully account for those
factors, or ‘when a district court applies broader § 3553(a)
considerations in granting the variance.’” United States v.
Richart, 662 F.3d 1037, 1052 (8th Cir. 2011) (quoting United
States v. Jones, 509 F.3d 911, 914 (8th Cir. 2007)). In this case,
the district court explicitly set forth its consideration of the
§ 3553 factors. The court’s discussion of the criminal history of
Ransom—that is, that he committed this fraud while on
probation for a substantially similar fraud—while reviewing the
presentence report makes it plain that he did not deem the
Guidelines calculation in the report to have fully accounted for
Ransom’s criminal history.

    Ransom further asserts that the district court erred in
holding that an upward variance was justified because of
Ransom’s abuse of trust. He argues that an abuse of trust
“enhancement” under U.S.S.G. § 3B1.3 is “generally reserved
                                 8

for professionals with fiduciary duties and it was not intended to
apply to clerks or managers who don’t exercise discretion.”
Appellants’ Br. at 50. He rightly notes that § 3B1.3 “defines a
‘position of trust’ as one that is ‘characterized by professional or
managerial discretion.’” Id. (quoting U.S.S.G. 3B1.3
Application Note (Nov. 1, 1994)). This is, in fact, very true.
And as Ransom further notes, the Application Commentary
gives examples for applying the adjustment:

      This adjustment, for example, applies in the case of an
      embezzlement of a client’s funds by an attorney serving as
      a guardian, a bank executive’s fraudulent loan scheme . . .
      This adjustment does not apply in the case of an
      embezzlement or theft by an ordinary bank teller or a hotel
      clerk because such positions are not characterized by the
      above-described factors.

Id.

     Ransom’s problem is he is not a bank teller or hotel clerk or
anything similar. He was, in fact, the manager of the
fraudulently operating scheme. He was vice president of the
real estate development company with whom the defrauded
apartment owners dealt and whom they trusted. He, according
to the victim testimony and impact statements before the district
court, defrauded, deceived and deluded them daily. The district
court heard and appropriately made reference to the testimony
of the parade of victim witnesses, and read and appropriately
made reference to the written victim impact statements.

     “[W]e review claims of substantive unreasonableness for
abuse of discretion, regardless of whether an objection on those
terms was made.” United States v. Russell, 600 F.3d 631, 633
(D.C. Cir. 2010). During Ransom’s sentencing hearing, the
district court mentioned that there were a number of victims,
                                 9

heard from several of them at that time, and stated that there
were 174 pages of victim impact statements and that he had
reviewed all of them. To reiterate, the court also questioned
Ransom’s acceptance of responsibility since Ransom had not yet
filed a financial disclosure report as required by the plea
agreement. Furthermore, the court noted that in his property
management business, Ransom had a relationship with his
clients in which they trusted him with their money and property,
that Ransom abused that trust repeatedly, and that the Guidelines
calculation had not taken that abuse into account. The court also
mentioned Ransom’s conviction in 2003 for “the same type of
offense that [Ransom] then went on and perpetrated in spades
with Mr. Talbott again.” We conclude that Ransom’s sentence
was not so unreasonably high as to constitute an abuse of
discretion by the district court. See United States v. Gardellini,
545 F.3d 1089, 1093 (D.C. Cir. 2008) (“In light of the facts and
circumstances of the offense and offender, is the sentence so
unreasonably high or unreasonably low as to constitute an abuse
of discretion by the district court?”).

           C. Arguments Made on Appeal by Talbott

     Like Ransom, Talbott argues that his sentence was both
procedurally and substantively unreasonable. First, Talbott
asserts that the district court erred procedurally when its
explanation for why it was imposing an above-Guidelines
sentence consisted only of a recitation of the § 3553(a) factors
and a single comment that, given the nature and circumstances
of Talbott’s offense, an above-Guidelines sentence was
appropriate. Talbott argues that reciting the sentencing factors
that influence a court’s decision-making is not enough: the court
must also explain, pursuant to 18 U.S.C. § 3553(c), why those
factors justify the defendant’s particular sentence. See 18
U.S.C. § 3553(c)(1) (“The court, at the time of sentencing, shall
state in open court the reasons for its imposition of the particular
                                10

sentence . . . .”). The court’s failure to do so, Talbott contends,
is plain error. See In re Sealed Case, 527 F.3d 188, 193 (D.C.
Cir. 2008) (“[T]he failure to provide a statement of reasons as
required by § 3553(c) is plain error . . . .”). Talbott also argues
that his sentence was procedurally unreasonable because the
district court, as one of the reasons for giving Talbott an above-
Guidelines sentence, mistakenly believed that Talbott had
hidden assets.

     As noted in our Ransom discussion above, we review the
district court’s sentencing procedures for plain error. It is true,
as Talbott contends, that when sentencing Talbott the district
court recited the § 3553(a) factors that it was to take into
account. But the court then went on, for four pages of transcript,
explaining in detail why it was imposing Talbott’s sentence. In
particular the court stated: that Talbott had been convicted in
2003 of the same kind of crime; that while on pretrial release
Talbott had committed further crimes; that Talbott had no regard
for the law and no remorse; and that the public had to be
protected from him. Contrary to Talbott’s argument, although
the court mentioned the missing assets during the sentencing
hearing, it did not list them as one of the reasons for giving
Talbott an above-Guidelines sentence. Finally, the court, as it
had with Ransom, repeated its detailed explanation for Talbott’s
above-Guidelines sentence in an extensive paragraph in its
written Statement of Reasons. We conclude that at sentencing
the district court committed no, much less plain, procedural
error.

                          * * * * *

     Second, Talbott argues that his 120 months sentence—42
months above the top of the 63-78 months Guidelines range—
was substantively unreasonable. He acknowledges that, as the
district court stated in its reasons for his sentence, he committed
                                11

new offenses while on release. But he claims that these offenses
were already taken into consideration when his Sentencing
Guidelines range was calculated. Furthermore, Talbott argues,
18 U.S.C. § 3553(a)(6) directs a court to “avoid unwarranted
sentence disparities among defendants with similar records who
have been found guilty of similar conduct.” Talbott claims that
he and Ransom had the same criminal history, engaged in the
same offense conduct, and against the same victims, yet Ransom
was only sentenced to 72 months, or 16 months above the
Guidelines range, while he was sentenced to 120 months, or 42
months above the Guidelines range. Talbott argues that this gulf
between his and Ransom’s sentence is not consistent with §
3553(a)(6)’s requirement that the district court avoid
unwarranted disparities.

     At this point, it would be perhaps appropriate to review
some additional conduct on the part of Talbott. During the
pendency of the case, he obtained pretrial release. While on
pretrial release, he engaged in financial dealings, in violation of
the conditions of his pretrial release and filed false vehicle title
documents in Delaware. Perhaps the short answer to Talbott’s
complaint that he received more time than his codefendant is:
you committed more crimes pending trial; he didn’t.

     However, more formally, as noted above, we review claims
of substantive unreasonableness for abuse of discretion. Our
discussion above of Talbott’s procedural error claims shows that
the district court explained in detail why it imposed Talbott’s
sentence. With respect to Talbott’s specific arguments here, the
district court judge stated that not only had Talbott committed
crimes while on release, but had committed the same sort of
crimes for which he was now being sentenced. Furthermore, the
court stated that Talbott had repeatedly committed fraud, lied,
created false documents, and threatened people with legal
action, leading the court to determine that the public had to be
                               12

protected from Talbott. We conclude that the district court
judge did not abuse his discretion in sentencing Talbott.


                          Conclusion

     In the end, we conclude that the district court did not only
all that it was required to do in entering the upwardly variant
sentences, but more than enough. For the reasons stated above,
the judgment of the district court is

                                                       Affirmed.
