United States v. Deffenbaugh, 11–4951.

• Decision Date: 28 February 2013
• Docket Number: No. 11–4951.,11–4951.
• Citation: 709 F.3d 266
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Larry L. DEFFENBAUGH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

709 F.3d 266

UNITED STATES of America, Plaintiff–Appellee,

v.Larry L. DEFFENBAUGH, Defendant–Appellant.

No. 11–4951.

United States Court of Appeals,

Fourth Circuit.

Argued: Dec. 7, 2012.

Decided: Feb. 28, 2013.

ARGUED: Patrick L. Bryant, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Joseph Kosky, Office of the United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF:Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, Keith Loren Kimball, Assistant Federal Public Defender, Office of the Federal Public Defender, Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

Before NIEMEYER, KING, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge KING and Judge FLOYD joined.

OPINION

NIEMEYER, Circuit Judge:

In order to avoid a state probation violation hearing, Larry Deffenbaugh designed a plan to fake his death with the assistance of his girlfriend. Under the scheme, Deffenbaugh would rent a boat to go fishing with his unsuspecting brother and, while his brother was preoccupied with driving the boat, he would jump off, swim to shore, meet up with his girlfriend, and flee the State. He expected that when his brother discovered his absence, his brother would make a distress call; that the U.S. Coast Guard would respond and conduct an unsuccessful search; and that he would be declared dead after a period of time.

It all happened as planned, except that Deffenbaugh was not declared dead. He was arrested in Texas and indicted and convicted in Virginia of conspiring with his girlfriend to cause a false distress call to be communicated to the U.S. Coast Guard, in violation of 18 U.S.C. § 371, and the substantive offense of causing a false distress call to be sent to the U.S. Coast Guard, in violation of 14 U.S.C. § 88(c). The district court sentenced him to 48 months' imprisonment on the conspiracy count and 36 months' imprisonment on the substantive count, to be served consecutively.

On appeal, Deffenbaugh contends that the government failed to prove a conspiracy because his girlfriend did not share in the object of the conspiracy to commit a federal offense, as she was not aware and therefore could not intend that the false distress call would go to the U.S. Coast Guard. He also challenges the reasonableness of his sentence.

We affirm. Although the government did not prove that Deffenbaugh's girlfriend was aware and therefore intended that the U.S. Coast Guard would respond to the false distress call, it proved that she knew of and participated in the plan and that, under the plan, a false distress call would be made. With this proof and proof that the U.S. Coast Guard received the call, the government established a conspiracy to violate 14 U.S.C. § 88(c), regardless of whether the conspirators knew or intended that the Coast Guard would receive the call.

We also conclude that Deffenbaugh's sentence was not “plainly unreasonable,” the standard applicable when, as here, no Guideline exists for the offenses committed.

I

On the evening of May 10, 2009, Larry Deffenbaugh vanished from a fishing boat in the middle of the Chesapeake Bay while on a fishing trip with his brother Wayne. The trip began at Dockside Marina in Virginia Beach, Virginia. Deffenbaugh was a licensed sea captain, who had piloted everything from fishing boats to large corporate-owned yachts, eventually earning a Master-level captain's license through the U.S. Coast Guard. His brother Wayne did not have the same experience and was not in good health. Wayne was legally blind and suffered from diabetic comas.

Nonetheless, on the evening of May 10, Deffenbaugh instructed his brother to drive the boat while Deffenbaugh was near the fishing gear at the stern. When Wayne was looking forward, Deffenbaugh jumped off the boat and disappeared. Wayne soon discovered Deffenbaugh's absence and, unsure whether he was playing a joke, began yelling for him and looking for him. After failing to find him, he believed that Deffenbaugh may have drowned and placed an emergency call to 911.

The 911 call was received by the Virginia Beach Emergency Communication and Citizens Services and forwarded to the U.S. Coast Guard, which immediately responded. It initiated a search-and-rescue operation, dispatching small boats, an 87–foot cutter, a U.S. Navy ship, helicopters, and aircraft. When it found Wayne, he was disoriented and upset. The Coast Guard continued the search for Deffenbaugh for some 15 hours before giving up on finding him. The search cost the Coast Guard $220,940.

Unbeknownst to the Coast Guard, Deffenbaugh was not lost at sea. In fact, by the time the Coast Guard ended its search, Deffenbaugh was well on his way out of the State, heading south. He had planned his disappearance with his girlfriend, Julie Giannetta, as part of a scheme he concocted to fake his death and thereby avoid a probation violation hearing related to an earlier Maryland conviction. In September 2008, Deffenbaugh had entered an Alford plea in a Maryland court to a felony theft charge, receiving a sentence of 15 years' imprisonment, suspended with a condition of 5 years' supervised probation. Several months later, in November 2008, the Maryland Probation Office filed a probation violation petition, alleging that Deffenbaugh failed to present proof that he had sold, transferred, or relinquished possession of a handgun that had been registered to him. If found in violation of his probation, Deffenbaugh was subject to having his suspended sentence reinstated. The Probation Office scheduled a hearing on the alleged violation for May 12, 2009. Deffenbaugh staged his “death” on May 10, 2009.

After jumping off the fishing boat that his brother was driving, Deffenbaugh swam to shore and called Giannetta, who, as had been prearranged, was waiting to pick him up. Deffenbaugh and Giannetta then drove to Texas. After receiving a tip from a viewer of America's Most Wanted, local police and U.S. Marshals arrested Deffenbaugh some nine months after his disappearance, on February 16, 2010, in Baytown, Texas, where he was living under the name “Mike Meyers.”

Shortly after his arrest, Deffenbaugh was indicted on one count of causing a false distress message to be communicated to the U.S. Coast Guard, in violation of 14 U.S.C. § 88(c). After a four-day trial, the jury could not reach a verdict, and the district court declared a mistrial. During the trial, however, Julie Giannetta approached the government and offered to testify against Deffenbaugh in exchange for immunity, and the government agreed. Having Giannetta's cooperation, the government filed a two-count superseding indictment charging Deffenbaugh with (1) conspiracy to violate 14 U.S.C. § 88(c), in violation of 18 U.S.C. § 371; and (2) the substantive offense of violating 14 U.S.C. § 88(c).

Giannetta testified as a cooperating coconspirator at the second trial, providing the government with its most important testimony. She testified that, prior to his staged disappearance on May 10, 2009, Deffenbaugh had discussed his legal situation with her and had stated that he felt the Maryland authorities were trying to frame him with the gun charge. Deffenbaugh told Giannetta about his plan, as she related it, to “go out in the boat with his brother and make his brother believe he fell overboard or something had happened to him and have him call 911, and then once you went missing long enough, they would file a death certificate.” Giannetta also testified about their preparations for the scheme and actions taken in carrying it out. For instance, she stated that Deffenbaugh transferred ownership of his automobile to her a week before he disappeared because Deffenbaugh “was supposed to be, you know, dead after ... we left.” As Deffenbaugh instructed her, Giannetta also lied to Deffenbaugh's brother and sister-in-law in telling them that she was headed to nursing school in Florida so as to create an alibi for her absence. With the alibi established, Giannetta then checked into a local hotel and waited for Deffenbaugh's call during the evening of May 10. She testified that at dusk on that date, Deffenbaugh called her, and she drove to the prearranged pickup spot where she found Deffenbaugh and fled the area with him. The two stayed in Baytown, Texas, until Deffenbaugh's arrest.

Following a three-day trial, the jury convicted Deffenbaugh on both counts.

The presentence report prepared by the Probation Office concluded that Deffenbaugh had a criminal history Category III, but noted that there was no Sentencing Guideline for either 18 U.S.C. § 371 or 14 U.S.C. § 88(c). In such a circumstance, it noted, the sentencing court was entitled to use a closely analogous guideline or, if there were none, to sentence the defendant using the factors under 18 U.S.C. § 3553(a).

At sentencing, the government argued that the fraud Guideline, U.S.S.G. § 2B1.1, was closely analogous and urged the district court to adopt it. Using that Guideline, the government calculated that the recommended sentencing range would be 78 to 97 months' imprisonment, which reflected a number of relevant sentencing enhancements.¹ Deffenbaugh argued against application of the fraud Guideline and urged the court to sentence him to time served.

The district court concluded that it would not apply the fraud Guideline as it was not sufficiently analogous to use, but it did allow that it was “looking to” that Guideline and would take it “into consideration” when applying the statutory sentencing factors under § 3553(a). After describing an extensive list of aggravating circumstances and determining that a sentence of 84 months' imprisonment was appropriate under § 3553(a), the court sentenced Deffenbaugh to 48 months' imprisonment on Count I and 36 months' imprisonment on Count II, to be served consecutively.

This appeal followed.

II

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