United States v. Vincent S. Norman

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT Nov. 16, 2009 No. 09-11849 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

D. C. Docket No. 08-80004-TP-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VINCENT S. NORMAN,

Defendant-Appellant.

________________________

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

(November 16, 2009)

Before TJOFLAT, CARNES and WILSON, Circuit Judges.

PER CURIAM:

Vincent S. Norman appeals his sentence of 24 months imprisonment followed by three years of supervised release imposed upon revocation of his

supervised release. Norman contends that the district court erred when it

determined that he committed a Grade A violation of his supervised release

because the court failed to determine the value of the property involved in his

supervised release violation.

There are three grades of supervised release violations. United States

Sentencing Guidelines Manual § 7B1.1(a) (Nov. 2000).1 The grade of a supervised

release violation, in conjunction with the defendant’s criminal history category,

determines the range of imprisonment applicable under the guidelines upon

revocation of supervised release. U.S.S.G. § 7B1.4(a). Grade A violations, which

are the most serious ones, include “any . . . federal, state, or local offense

punishable by a term of imprisonment exceeding twenty years.” U.S.S.G. §

7B1.1(a)(1)(B).

Florida law divides the offenses of grand theft and organized fraud into

degrees based on the amount of property obtained. The degree of the crime

controls the severity of the punishment. Under Florida law, if a person steals

1 Norman’s original sentence of supervised release was imposed under the 2000 guidelines. The district court did not specify which year’s guidelines it used in imposing the sentence challenged in this appeal. Norman cites the 2007 guidelines in his brief to this Court. In any event, the provisions of the guidelines material to this appeal are the same in 2007 as they were in 2000.

2 property “valued at $100,000 or more,” he commits “grand theft in the first

degree.” Fla. Stat. § 812.014(2)(a). Florida law provides for a maximum sentence

of 30 years imprisonment for anyone convicted of grand theft in the first degree.

Fla. Stat. § 775.082(3)(b). A person commits organized fraud in the first degree

under Florida law when he “engages in a scheme to defraud and obtains property

thereby . . . [i]f the amount of property obtained has an aggregate value of $50,000

or more.” Fla. Stat. § 817.034(4)(a)(1). Like grand theft in the first degree,

organized fraud in the first degree is punishable by a maximum term of 30 years in

prison. Fla. Stat. § 775.082(3)(b). Both grand theft in the first degree and

organized fraud in the first degree, as defined by Florida law, qualify as Grade A

violations under the sentencing guidelines. See U.S.S.G. § 7B1.1(a)(1)(B).

“Pursuant to 18 U.S.C. § 3583(e), upon finding [by a preponderance of the

evidence] that the defendant violated a condition of supervised release, a district

court may revoke the term of supervised release and impose a term of

imprisonment after considering the specific factors set forth in 18 U.S.C. §

3553(a).” United States v. Velasquez-Velasquez, 524 F.3d 1248, 1252 (11th Cir.

2008). The district court concluded that Norman committed a Grade A violation of

his supervised release. This conclusion, when coupled with Norman’s criminal

history category I, resulted in a recommended guideline sentence of twelve to

3 eighteen months. See Gall v. United States, 552 U.S. 38, 128 S. Ct. 586 (2007)

(“[A] district court should begin all sentencing proceedings by correctly

calculating the applicable Guidelines range.”); United States v. Crawford, 407 F.3d

1174, 1178 (11th Cir. 2005) (same). The district court then considered factors laid

out in 18 U.S.C. § 3553(a) before sentencing Norman to 24 months imprisonment

followed by three years of supervised release. See United States v. Talley, 431

F.3d 784, 786 (11th Cir. 2005) (after determining the appropriate range under the

guidelines, a district court must consider factors listed in 18 U.S.C. § 3553(a) in

imposing a reasonable sentence).

Norman contends that the district court erred when it found that he

committed a Grade A violation of his supervised release without determining the

value of the property involved in the violation. He emphasizes that Florida law

divides the crimes of grand theft and organized fraud into degrees, with each

degree having a corresponding statutory maximum punishment, based on the value

of the property involved in the crime. He also notes that the grade of a supervised

release violation depends on the length of imprisonment authorized to punish the

crime constituting the violation. According to Norman, this means that a court

cannot determine the grade of a supervised release violation taking the form of

Florida law grand theft or organized fraud without making a finding as to the

4 specific value of the property involved in the violation. Norman argues that the

district court’s failure to make such a finding requires that his sentence be vacated.

Norman leans heavily on the following statement made by the district court:

“I will not today and do not today engage in a precise figure. It is very difficult to

do that. But I am well satisfied that Norman was stealing money[] from the

company.” Norman places more weight on that statement than it can bear. By

contrast, he gives no weight to the district court’s statement that “[Norman’s

violation] is an A violation, the amount of moneys stolen well in excess of

$100,000.00 and accordingly I am ready to impose a sentence in this regard.” The

district court’s factual finding that the amount of money stolen by Norman totaled

well in excess of $100,000 was not clearly erroneous. The record provides ample

support for it. There is evidence of $212,941.96 in fraudulent online transactions

alone. On top of that hefty sum, the record contains evidence that Norman forged

checks on two different bank accounts in amounts totaling $59,283.46 and

$13,487.21.

Based on its factual finding that Norman’s violation involved well over

$100,000 and therefore qualified as a felony in the first degree under Florida law,

the district court concluded that Norman committed a Grade A violation and

calculated the guidelines range accordingly. Because the factual findings

5 underlying its calculations are not clearly erroneous, the district court did not

improperly calculate the applicable guidelines range. Norman’s sentence is not

procedurally unreasonable. Because Norman’s contention that his sentence is

substantively unreasonable is based on his failed argument that the district court

improperly determined that he committed a Grade A violation, it too fails.

Accordingly, the judgment of the district court is

AFFIRMED.

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