U.S. v. Hyacinth, No. 08-15573. Non-Argument Calendar (11th Cir. 2/18/2010)

• Decision Date: 18 February 2010
• Docket Number: No. 08-15573.,08-15573.
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN HYACINTH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

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UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN HYACINTH, Defendant-Appellant.

No. 08-15573. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

February 18, 2010.

Appeal from the United States District Court for the Northern District of Georgia, D. C. Docket No. 06-00172-CR-TWT-1.

Before EDMONDSON, CARNES and FAY, Circuit Judges.

DO NOT PUBLISH

PER CURIAM.

John Hyacinth appeals his convictions and 120-month total sentence for his participation in a mortgage fraud scheme.¹ No reversible error has been shown; we affirm.

Hyacinth argues that the district court abused its discretion when it dismissed a juror who said he had a hardship because the court did not inquire adequately into the juror's circumstances. We review a district court's decision to remove a juror for abuse of discretion. United States v. Register, 182 F.3d 820, 839 (11th Cir. 1999). And we review the exercise of discretion to ensure that the district court did not "discharge the juror without factual support, or for a legally irrelevant reason so as to amount to a showing of bias or prejudice to the defendant." United States v. Puche, 350 F.3d 1137, 1152 (11th Cir. 2003) (citation omitted).

Here, at the start of the government's case-in-chief, the juror explained to the district court that he was a sole proprietor and both of his employees were unable to work the week Hyacinth's trial began because of family situations and, thus, that he faced a financial hardship if forced to continue on the jury. The court concluded that the juror did not wish to participate and would not be cooperative due to the financial hardship he would suffer if he remained on the jury. On this record, we cannot say that the district court abused its discretion in dismissing the juror: the court had adequate information about the juror's reasons for seeking to be excused and a sufficient factual basis existed for the court's decision. Nothing suggests that the decision was based upon bias or prejudice to Hyacinth. See id.²

We now address Hyacinth's sentencing arguments. Hyacinth challenges the district court's imposition of a sophisticated means enhancement, U.S.S.G. § 2F1.1(b)(6)(C). We review for clear error the finding and imposition of a sophisticated means enhancement. United States v. Robertson, 493 F.3d 1322, 1329-30 (11th Cir. 2007).

A two-level enhancement is warranted if the offense in question "involved sophisticated means." U.S.S.G. § 2F1.1(b)(6)(C).³ The guidelines explain "sophisticated means" as especially complex or intricate offense conduct pertaining to the execution or concealment of the offense. See U.S.S.G. § 2F1.1, comment. (n.18) (explaining that "[c]onduct such as hiding assets or transactions or both, through the use of fictitious entities, corporate shells, or offshore bank accounts . . . ordinarily indicates sophisticated means").

Here, Hyacinth actively participated in a large mortgage fraud scheme that involved (1) the use of straw borrowers to hide the true beneficiaries of loans, (2) obtaining fraudulent appraisals to receive the loans, and (3) creating a variety of false documents to hide the fraudulent nature of the beneficiaries of the loan. Hyacinth personally recruited straw borrowers and created false documents about these borrowers. See United States v. Campbell, 491 F.3d 1306, 1316 (11th Cir. 2007) (in terms of sophistication of concealment, concluding that there was no difference between hiding assets or transactions through the use of fictitious entities, corporate shells, or offshore financial accounts and hiding assets or transactions through the use of a straw man or campaign fund). Hyacinth clearly contributed to the elaborate execution and concealment of the fraud in the large and lengthy scheme.⁴ See United States v. Clarke, 562 F.3d 1158, 1166 (11th Cir. 2009) (noting the three-year length of the conspiracy in determining that the sophisticated means enhancement was appropriate). We see no clear error in the district court's application of the sophisticated means enhancement.

Hyacinth also argues that he received a higher sentence because of his refusal to enter into pretrial stipulations. He contends that he was punished for exercising his constitutional rights, in violation of due process. To succeed on a claim that an impermissible factor affected the sentence, "the party challenging the sentence bears the initial burden of establishing that the district court considered an impermissible factor at sentencing." United States v. Williams, 456 F.3d 1353, 1361 (11th Cir. 2006), abrogated on other grounds by Kimbrough v. United States, 128 S.Ct. 558 (2007). "A sentence may be substantively unreasonable when the district court . . . bases the sentence on impermissible factors[.]" United States v. Pugh, 515 F.3d 1179, 1191-92 (11th Cir. 2008) (citation omitted).⁵ "A sentence that is based entirely upon an impermissible factor is unreasonable because such a sentence does not achieve the purposes of" 18 U.S.C. § 3553(a). United States v. Lorenzo, 471 F.3d 1219, 1221 (11th Cir. 2006).

Under section 3553(a), a district court can consider the nature and circumstances of the offense, the history and characteristics of the defendant, the need for the sentence to provide adequate deterrence, respect for the law, and protection of the public, policy statements of the Sentencing Commission, provision for the medical and educational needs of the defendant, and the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).

At sentencing, the district court rejected Hyacinth's request for a non-guideline sentence and imposed a sentence near the top of the guidelines range. In doing so, the court noted that Hyacinth's role in the extensive scheme was that of a "recruiter, organizer, leader, and manager" and that, unlike his co-defendants in similar roles, he did not...