             Case: 13-13319   Date Filed: 06/12/2014   Page: 1 of 10


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-13319
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 1:11-cr-00230-JEC-GGB-1


UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                     versus

KRISTEN NOELL GODUTO,

                                                          Defendant - Appellant.

                        ___________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                      ____________________________
                               (June 12, 2014)

Before HULL, MARCUS, and JORDAN, Circuit Judges.

PER CURIAM:

      Kristen Goduto appeals a 168-month sentence imposed after her guilty plea

to violating 21 U.S.C. § 846 by conspiring to possess a controlled substance with

intent to distribute (here, oxycodone, a Schedule II controlled substance,
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distribution of which is proscribed under 21 U.S.C. § 841(b)(1)(C)). Ms. Goduto

contends that her sentence is procedurally unreasonable because the district court

erred by (1) applying a two-level increase for her use of unusually vulnerable

individuals in the course of her criminal conduct, pursuant to U.S.S.G. §

2D1.1(b)(14)(B)(iv); and (2) departing downward only one criminal history

category level.      Additionally, Ms. Goduto contends that her sentence is

substantively unreasonable because (1) the district court failed to find that the

conversion ratio of oxycodone to marijuana in the Drug Equivalency Table of the

Sentencing Guidelines is not based on empirical data or rational experience; and

(2) her sentence was greater than necessary to meet the goals of 18 U.S.C. §

3553(a) and also created an unwarranted sentencing disparity with her co-

conspirators.

      After a thorough review of the record and consideration of the parties’ briefs

on appeal, we affirm Ms. Goduto’s sentence.

                                          I

      We generally review both the procedural and substantive reasonableness of a

sentence under an abuse of discretion standard. See United States v. Pugh, 515

F.3d 1179, 1190 (11th Cir. 2008); United States v. Ellisor, 522 F.3d 1255, 1277

n.25 (11th Cir. 2008). The party challenging the sentence has the burden of




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establishing that the sentence was unreasonable. See United States v. Saac, 632

F.3d 1203, 1212 (11th Cir. 2011).

      We review the interpretation and application of the guidelines de novo and

findings of fact for clear error. See United States v. Bane, 720 F.3d 818, 824 (11th

Cir. 2013). “A factual finding is clearly erroneous when although there is evidence

to support it, the reviewing court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.” United States v. Robertson,

493 F.3d 1322, 1330 (11th Cir. 2007) (internal quotation marks omitted). At a

minimum, there must be substantial evidence to support a factual finding. Id. “The

district court's factual findings for purposes of sentencing may be based on, among

other things, evidence heard during trial, undisputed statements in the PSI, or

evidence presented during the sentencing hearing.” United States v. Polar, 369

F.3d 1248, 1255 (11th Cir. 2004).

                                          II

      The Sentencing Guidelines, in § 2D1.1, provide for a two-level enhancement

for a defendant who, having also received an aggravating-role enhancement under

§ 3B1.1, and “knowing that an individual was unusually vulnerable due to physical

or mental condition or otherwise particularly susceptible to the criminal conduct,

distributed a controlled substance to that individual or involved that individual in

the offense.” U.S.S.G. § 2D1.1(b)(14)(iv). Although Ms. Goduto does not dispute


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the propriety of her role enhancement under § 3B1.1, she argues that the district

court erred in applying the § 2D1.1 enhancement.

      The district court interpreted the phrase “unusually vulnerable” to include

individuals suffering from chemical addiction.     See § 2D1.1(b)(14)(B).      Ms.

Goduto does not challenge this interpretation, but instead argues that the

enhancement requires a factual showing of force or intimidation. See Appellant’s

Initial Brief at 48 (“Not one [person] testified that they were forced or browbeat

into participating. While many of the co-defendants had a drug problem, that was

their problem; Ms. Goduto did not make anyone take drugs.”).            We are not

persuaded. The text of § 2D1.1(b)(14)(B) does not mention force or intimidation.

      The district court fairly found that Ms. Goduto exploited the drug addictions

of several individuals to tempt them into her conspiracy. One such vulnerable

person, co-defendant Georgia Hulsey, suffered from an oxycodone addiction and

attempted to expose, and thereby free herself from, Ms. Goduto’s conspiracy by

anonymously warning physicians that false prescriptions were being passed in their

names. See D.E. 470 at 73-74.     Even with this heightened risk of being caught,

Ms. Hulsey continued in the conspiracy because Ms. Goduto would pay her in

oxycodone pills.    Id.   Another co-defendant, Phillip Hobbs, was clinically

depressed, addicted to methamphetamine, and homeless.         Id. at 287-93.   Ms.

Goduto provided him methamphetamine in exchange for his role as a “runner” in


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the conspiracy, i.e., for delivering forged prescription notes to and collecting

oxycodone medications from pharmacies. Id. at 292. Finally, Ms. Goduto induced

Lori Anderson, yet another co-defendant, to falsely verify prescriptions by

threatening to inform her family of her methamphetamine addiction if she did not

participate. Id. at 38-41. In each case, Ms. Goduto was well aware of her co-

defendant’s addictions and exploited that vulnerability to further her criminal

conspiracy. As the district court noted, Ms. Goduto “had a slew of folks here with

real serious drug problems, some mental problems, and utilized those people, sent

them out to do her bidding, gave her some deniability and they were the ones that

were exposed at the pharmacy.” D.E. 469 at 331.

      In sum, the district court did not err, legally or factually, in imposing an

enhancement under § 2D1.1(b)(14)(iv).

                                        III

      The district court departed one level in Ms. Goduto’s criminal history

category, down to criminal history category II.         Ms. Goduto, however, had

requested a two-level departure to criminal history category I. Ms. Goduto argues

that the district court procedurally erred in failing to grant her this two-level

departure.

      A district court’s decision to depart from the Guidelines is reviewed for an

abuse of discretion. See United States v. Kimball, 291 F.3d 726, 733 (11th Cir.


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2002). A departure under U.S.S.G. § 4A1.3 generally requires that “the district

court must discuss each criminal history category it passes over en route to the

category that adequately reflects the defendant's past criminal conduct.” United

States v. Gibson, 434 F.3d 1234, 1252 (11th Cir. 2006). See also United States v.

Johnson, 934 F.2d 1237, 1240 n.7 (11th Cir. 1991) (“The district court must share

its findings with the defendant on the record [pursuant to a departure under

§4A1.3].”).

       The district court did not specify the rationale by which it departed just one

criminal history category. The court did, however, indicate that this departure was

based on its agreement with the government’s suggestion that only a one-level

departure be granted. See D.E. 469 at 11. See also D.E. 424 at 30. 1 The district

court also noted that Ms. Goduto’s criminal record was small, D.E. 469 at 17, and

the record established that Ms. Goduto’s only previous crime was a misdemeanor.

Nevertheless, the fact that Ms. Goduto was, at the time of her arrest, still on

probation for the previous drug-related misdemeanor clearly militated against a

further criminal history departure.

                                              IV



       1
         The government’s sentencing memorandum noted that Ms. Goduto’s “criminal history
points are somewhat duplicative; that is, she gets an extra criminal history point because of the
sentence she received for her probation violation and then two additional points for committing
the offense while on probation.” D.E. 424 at 29-30.
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       Next, Ms. Goduto claims that the district court erred by failing to disavow

the conversion ratio of oxycodone to marijuana set forth in the Sentencing

Guidelines.2 According to Ms. Goduto, the Sentencing Commission’s failure to

base this conversion ratio on empirical data or rational experience rendered it

inappropriate. The district court, however, provided sufficient explanation for

rejecting Ms. Goduto’s contentions. Moreover, the record does not support Ms.

Goduto’s claim that the district court failed to appreciate its authority to reject the

conversion ratio.

       A sentencing court is free to vary from a guideline sentence on the basis of

the § 3553(a) factors when the applicable guideline is not grounded in empirical

data. See Kimbrough, 552 U.S. at 108-10 (approving of variances from the crack

cocaine guidelines because the Sentencing Commission did not take account of

empirical data). The absence of empirical data alone, however, does not compel

the invalidation of a guideline, but is rather simply one factor that may be

considered in support of a variance. See United States v. Snipes, 611 F.3d 855, 870

(11th Cir. 2010). For example, we have stated that Kimbrough “empowered” the

district courts with the discretion to vary based on their disagreement with the

Guideline’s crack/powder cocaine disparity, but “did not command them to

       2
         The Sentencing Guidelines provides a drug equivalency table for use in determining the
base offense level for certain controlled substances. See U.S.S.G. § 2D1.1, comment. That table
equates 1 gram of heroin to 1 kilogram of marijuana; 1 gram of morphine to 500 grams of
marijuana; and 1 gram of oxycodone to 6,700 grams of marijuana. Id.
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exercise” this discretion. Dell v. United States, 710 F.3d 1267, 1279 (11th Cir.

2013).

      Although the district court expressed “some concerns” about the oxycodone

conversion ratio, it was not swayed by Ms. Goduto’s argument to completely

disregard that ratio. See D.E. 469 at 11-12. The court noted that it was appropriate

for the Sentencing Commission to consider other factors, not discussed by Ms.

Goduto’s expert witness, such as the actual, current risks of oxycodone to society.

Id. at 12-13. The court also noted that the Commission’s efforts in revising the

conversion ratio provided a more equitable treatment among oxycodone offenses –

by looking to the actual weight of oxycodone in a pill rather than the gross weight

of the pill itself. Id. at 13. Finally, the court recognized that oxycodone carries

distinct risks, unlike heroin, due to its legitimate medical use and accessibility,

which breed a sense of false security. Id.

      In sum, the district court had the authority to vary downward based on a

policy disagreement with the Sentencing Guidelines, but it was not required to do

so. The court thoroughly considered Ms. Goduto’s objections to the oxycodone

conversion ratio, addressed her arguments according to the appropriate standard of

review, and pursuant to thoughtful consideration of all her objections, granted a




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three-level variance – to a range of 168 to 210 months – because it believed a

guideline range of approximately 20 years was “excessive.” See id. at 16. 3

                                                 V

       Finally, Ms. Goduto claims that her sentence was substantively unreasonable

because it was excessive (i) in light of the underlying purposes of sentencing, and

(ii) in comparison with the sentences handed to her co-defendants, several of

whom had more extensive criminal histories than she did.

       A sentence is substantively unreasonable “if it does not achieve the purposes

of sentencing stated in § 3553(a).” United States v. Pugh, 515 F.3d 1179, 1191

(11th Cir. 2008) (internal quotation marks omitted). A district court must look to

the totality of the circumstances to determine whether the §3553(a) factors support

a given sentence. See United States v. Gonzales, 550 F.3d 1319, 1324 (11th Cir.

2008). Moreover, a district court must “avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar

conduct.”      18 U.S.C. § 3553(a)(6).                A defendant, however, fails to show

unwarranted sentencing disparities if she is unable to identify similarly situated



       3
         To the extent Ms. Goduto argues that the district court erred by not “departing” from the
Sentencing Guidelines, see Appellant’s Initial Brief at 39, we find such an argument unavailing.
Ms. Goduto did not ask for a departure; she asked for a variance because the oxycodone ratio
was excessive and not empirically based. See D.E. 468 at 62:13-16 (counsel for Ms. Goduto
noting that the district court “has the ability to say this is not empirically based or experientially
based and therefore you have the right and ability to vary from the guideline range.”).

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defendants who received substantially different sentences. See United States v.

Spoerke, 568 F.3d 1236, 1252 (11th Cir. 2009).

      Ms. Goduto’s sentence – which was 67 months below the advisory guideline

range – was not substantively unreasonable because the district court, at

sentencing, discussed the § 3553(a) factors and considered her arguments in

mitigation. See D.E. 469 at 17. In Ms. Goduto’s favor, the court noted that she

had a difficult family situation, did not have a significant criminal history, and had

demonstrated acceptance of responsibility. See id. at 16-17. However, the court

also noted the highly organized nature of the scheme, Ms. Goduto’s arrogance and

lack of remorse during the course of the conspiracy, the effect of Ms. Goduto’s

conduct on the community, and Ms. Goduto’s recruitment of vulnerable

individuals. See id. at 17-18.

      In short, the district court did not err in sentencing Ms. Goduto to a term of

168 months. And because Ms. Goduto has failed to show that any of her co-

defendants were as intimately involved in every aspect of the conspiracy as she

was, she has not shown that her sentence created an unwarranted sentencing

disparity.

                                          VI

      For the foregoing reasons, we affirm Ms. Goduto’s sentence.

AFFIRMED.


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