The Eleventh Circuit Board

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Did you ever wonder what sentences are being doled out for clients prosecuted for COVID-related fraud? Look no further than US v. Oudomsine. Ousomsine pled guilty to fraudulently obtaining an $85,000 disaster loan under the CARES Act. Although the guideline range was merely 8-14 months, the trial court varied upward and sentenced him to 36 months in prison. The court cited Oudomsine’s “education, ability, and background to steal money from a national benevolence,” and noted that he showed a “blatant disregard for the people who needed these funds and for the people who paid for this program.” Oudomsine replied that the real reason the court varied upward was that it did not like him, and the reason it didn’t like him was that he spent most of the stolen loan ($57,789) on a single Pokémon card. The Eleventh Circuit panel held that the sentence was substantively reasonable, no matter the Pokémon card: “The district court appeared to give more weight to the need for deterrence than to other sentencing factors, and it did not abuse its discretion in doing so.” The panel emphasized that “general deterrence is a critical factor that must be considered and should play a role in sentencing defendants.” Indeed, it is “one of the key purposes of sentencing.” A practice tip: If your client fraudulently obtains funds, advise him not to buy Pokémon cards.

Seven years after Eric King began supervised release, the court revoked him for positive drug screens and failed treatment efforts. Although the advisory guideline range was only 4-10 months, the court imposed 36 months of prison, in part because King “needed at least a 24-month term of imprisonment to have a chance at participating in the intensive residential substance abuse treatment program” which BOP offers. But wait. Doesn’t this violate US v. Tapia (U.S. 2011) and US v. Vandergrift (11th Cir. 2014), which bar a court from lengthening a defendant’s prison term to promote rehabilitation? According to Judge Tjoflat, in US v. King, it does not―at least not on plain error review. King objected to the sentence below as substantively unreasonable but failed to argue that it violated the rule in Tapia and Vandergrift. Nor was that argument made on appeal. After twenty-four pages of acrobatic logic, the majority decided that the record was unclear as to whether the court intended to promote rehabilitation through its harsh sentence. In dissent, Judge Rosenbaum showed in just three paragraphs that the district court’s own reasoning made plain a violation of Vandergrift, and, therefore, the sentence was substantively unreasonable.

Trolling does not pay! Colum Moran was convicted of attempted production of child pornography. On appeal, he challenged the sufficiency of the evidence. Moran messaged women on “wholesome” blogs that offer advice on raising children. He asked moms to post pictures of their daughters in explicit, sexual poses. Unfortunately, one mom happened to be married to an FBI agent. At trial and on appeal, Moran argued that he was simply trolling the earnest moms and never intended or expected that any would actually send him pornographic images. In US v. Moran, the panel rejected the trolling defense. Moran’s “desire alone,” regardless of the likelihood that any mom would send him images, is sufficient. The only question that matters is this: “[W]hether a jury could reasonably conclude that Moran consciously desired the bloggers whom he contacted to post pornographic images.” The government proved the requisite “desire” through his messages asking for images, plus his possession of more than 1,000 child pornography images and two dozen pairs of children’s underwear. It did not matter whether any given mom was likely to send Moran child pornography, only that he hoped she would. The convictions were affirmed. One more note: Although Moran’s trolling was ugly, we find it shocking that he ended up with a sentence of 64 years in prison.

Contributors: Wes Bryant, Tom Hawker, and Suzanne Hashimi.

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