U.S.A v. Ghertler

• Decision Date: 14 May 2010
• Docket Number: No. 09-10609.,09-10609.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Jonathan David GHERTLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

605 F.3d 1256

UNITED STATES of America, Plaintiff-Appellee,v.Jonathan David GHERTLER, Defendant-Appellant.

No. 09-10609.

United States Court of Appeals, Eleventh Circuit.

May 14, 2010.

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Andrew Lynn Brasher (Court-Appointed), Bradley Arant Rose & white, LLP, Birmingham, AL, for Defendant-Appellant.

Peggy Morris Ronca, Orlando, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA, Chief Judge, and MARTIN and HILL, Circuit Judges.

MARTIN, Circuit Judge:

Jonathan David Ghertler appeals his concurrent 185-month sentences imposed after he pleaded guilty to eight counts of wire fraud. He argues that the district court procedurally erred by failing to explain adequately the reasons for his sentence; that his sentence was improperly enhanced for abusing a position of trust and the use of sophisticated means; that his sentence is unconstitutional because the district court relied on facts that were neither admitted in his guilty plea nor proved to a jury beyond a reasonable doubt; and that the district court erroneously considered unreliable information at sentencing. After thorough review and oral argument, we reverse the district court's application of a two-level enhancement under United States Sentencing Guidelines § 3B1.1 for abuse of a position of trust. We affirm Mr. Ghertler's sentence in all other respects.

I.

Between July 2006 and December 2007, and while on supervised release from another fraud conviction in the Southern District of New York, Mr. Ghertler perpetrated a series of remarkably successful frauds on large corporations and law firms. Mr. Ghertler would first research companies and the names of their officers on the internet. He would then telephone the company, identify himself as a high-ranking company official (many times, though not always, the general counsel), and claim that he needed an immediate cash transfer to resolve an urgent matter (usually, the settlement of a fictitious lawsuit). He would then either give verbal instructions regarding the distribution of funds, or fax letters or memoranda over a forged signature authorizing the transfers and providing instructions. At times, the funds were transferred directly to Mr. Ghertler. On other occasions Mr. Ghertler used unwitting couriers to pick up and deliver the proceeds of the frauds. Sometimes he had the funds wired into the accounts of unwitting third parties, who then transferred the cash proceeds to him.

On April 16, 2008, Mr. Ghertler was indicted on eight counts of wire fraud under 18 U.S.C. § 1343. The indictment alleged that Mr. Ghertler defrauded a total of fourteen different companies, though only seven were named. ¹ The indictment alleged a total intended loss amount of $956,500, but sought forfeiture of $766,500, which the indictment alleged as the actual loss amount.

On July 23, 2008, three days before Mr. Ghertler was to go to trial, the United States superseded the indictment, deleting any reference to the previously unnamed companies and reducing the forfeiture amount to $250,000. ² Mr. Ghertler then entered a guilty plea to Counts One through Eight of the superseding indictment. He had no plea agreement with the government but admitted that he defrauded the seven companies identified in the indictment. He stated that had the United States not superseded the indictment to remove the reference to the unnamed companies, he would have gone to trial. For its part, the United States made clear that it intended to offer proof at sentencing of the seven additional frauds alleged in the original indictment.

Through the presentence investigation, the U.S. Probation Office found that Mr. Ghertler had defrauded fourteen different companies. These included the seven companies named in the superseding indictment, as well as Ropes & Gray, LLP, Howrey & Simon, LLP (“Howrey”), J.P. Morgan Trust Co., Wachovia Bank (“Wachovia”) Bank of New York Mellon (“Bank of New York”), National City Bank, and HSBC Bank (“HSBC”). The presentence investigation report (“PSR”) calculated the guidelines as follows: a base offense level of 7; a 16-level increase because the intended loss was greater than $1 million but not more than $2.5 million; a two-level increase because the offense involved more than ten victims; a two-level increase because Mr. Ghertler relocated the fraud to another jurisdiction to evade law enforcement or used sophisticated means; a two-level increase for abuse of a position of trust; and a two-level increase for obstruction, for a total offense level of 31. Based on Mr. Ghertler's extensive criminal history, which placed him in Criminal History Category VI,³ Mr. Ghertler's Guidelines range was 188 to 235 months.

Mr. Ghertler objected to the PSR, denying responsibility for the seven unindicted frauds. He argued that it is unconstitutional to sentence him more harshly based on conduct neither admitted by him nor submitted to a jury. He objected to the loss calculations and the number of victims for the same reason. He also objected to the obstruction, abuse-of-trust, and sophisticated means enhancements.

The district court then held a five-day sentencing hearing. The United States presented testimony from the investigating and arresting agents, officials from the defrauded companies, and three couriers who were unwitting participants in the frauds. Mr. Ghertler also took the stand to testify regarding a confession he gave to the arresting agents and his involvement in the various frauds.

After hearing the evidence and argument, the district court overruled Mr. Ghertler's objections to the unindicted conduct and found that Mr. Ghertler committed each of the frauds identified in the PSR. The district court also made the following guideline applications: that there were more than ten victims; that Mr. Ghertler either relocated the fraud to evade law enforcement or used sophisticated means; that a two-level enhancement for obstruction was warranted; and that Mr. Ghertler was not entitled to credit for acceptance of responsibility. Among the issues before us is the district court's finding that Mr. Ghertler abused a position of trust based on his impersonation of high-level company officials. Finally, the district court accepted the government's position that, in fact, the intended loss was between $400,000 and $1 million. With these changes, the court specifically adopted the PSR as the findings of the court. Based on Mr. Ghertler's Criminal History Category of VI, and a total offense level of 29, the district court determined that Mr. Ghertler's Guidelines range was 151 to 188 months imprisonment, his restitution amount was $766,500, and he faced a potential fine of $15,000 to $1,533,000.

After hearing argument from the parties regarding the appropriate sentence and Mr. Ghertler's allocution, the district court sentenced Mr. Ghertler to 185 months in prison. He also imposed a three year term of supervised release, waived the fine, and mandated restitution. This appeal followed.

II.

Mr. Ghertler argues that his sentence is procedurally unreasonable because the district court did not offer an adequate explanation for the sentence it imposed as required by 18 U.S.C. § 3553(c)(1). In this respect, Mr. Ghertler urges us not to consider statements made by the district court relating to, among other things, his extensive criminal history and his admission that he could not stop offending. Setting these statements aside, Mr. Ghertler argues that the only explanation the district court gave for his sentence was that “the sentence imposed [was] sufficient but not greater than necessary to comply with the satisfactory purposes of sentencing.” Mr. Ghertler characterizes this as a “truism” that provides an inadequate basis for appellate review.

We review de novo the sufficiency of the district court's explanation under § 3553(c)(1). United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir.2006).

“Pursuant to 18 U.S.C. § 3553(c)(1), a district court is required to state, in open court, the reason for its particular sentence, and if the sentence ‘is of the kind, and within the range [recommended by the Guidelines] and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range.’ ” Bonilla, 463 F.3d at 1181 (quoting 18 U.S.C. § 3553(c)(1)) (alteration in original). This explanation is “important” and “reflects sound judicial practice” because “[c]onfidence in a judge's use of reason underlies the public's trust in the judicial institution” and a statement of the judge's reasoning “helps provide the public with the assurance that creates that trust.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007).

The length and amount of detail describing the district court's reasoning depends on the circumstances. Id. A sentencing court is not required to “ ‘incant the specific language used in the guidelines' ” or “articulate its consideration of each individual § 3553(a) factor,” so long as the record reflects the court's consideration of many of those factors. Bonilla, 463 F.3d at 1182 (quoting United States v. Parrado, 911 F.2d 1567, 1572 (11th Cir.1990)). It is sufficient for the district judge to “set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita, 551 U.S. at 356, 127 S.Ct. at 2468. “Simply stated, a sentencing court should be mindful of the ‘factors to be considered in imposing a sentence’ when explaining its reasons for imposing a particular sentence and should tailor its statement accordingly.” Parrado, 911 F.2d at 1573.

Here, the district court listened to the parties' arguments regarding the appropriate sentence within the Guidelines range and heard from Mr. Ghertler, who admitted his significant criminal history but...