United States v. Oudomsine

• Decision Date: 18 January 2023
• Docket Number: 22-10924
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vinath OUDOMSINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

57 F.4th 1262

UNITED STATES of America, Plaintiff-Appellee,

v.Vinath OUDOMSINE, Defendant-Appellant.

No. 22-10924

United States Court of Appeals, Eleventh Circuit.

Filed: January 18, 2023

Justin Davids, James C. Stuchell, U.S. Attorney Service-Southern District of Georgia, U.S. Attorney's Office, Savannah, GA, for Plaintiff-Appellee.

Devin Austin Rafus, Arora Law Firm, Atlanta, GA, C. Brian Jarrard, Jarrard Law Group, LLC, Macon, GA, for Defendant-Appellant.

Before Lagoa, Brasher, and Ed Carnes, Circuit Judges.

Ed Carnes, Circuit Judge:

Vinath Oudomsine appeals his sentence of 36 months imprisonment for wire fraud, which is an upward variance from the guidelines range of 8 to 14 months. The district court imposed that sentence after Oudomsine pleaded guilty to providing false information to obtain an $85,000 Economic Injury Disaster Loan under the Coronavirus Aid, Relief, and Economic Security Act. He challenges the procedural and substantive reasonableness of his sentence.

I.

We ordinarily review the procedural reasonableness of a sentence for abuse of discretion. See Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; United States v. Harris , 964 F.3d 986, 988 (11th Cir. 2020). But where, as here, the defendant did not object to the procedural reasonableness of his sentence at the time of sentencing, we review only for plain error. United States v. Vandergrift , 754 F.3d 1303, 1307 (11th Cir. 2014). To prevail under plain error review, the defendant must show: (1) there was an error (amounting to an abuse of discretion); (2) that was plain; (3) that affected his substantial rights; and (4) that seriously affected the fairness of the judicial proceedings. United States v. Ramirez-Flores , 743 F.3d 816, 822 (11th Cir. 2014).

A sentence is procedurally unreasonable if the district court fails to adequately explain the sentence, including any variance from the guidelines range. See United States v. Shaw , 560 F.3d 1230, 1237 (11th Cir. 2009). The court is required "at the time of sentencing ... to state in open court the reasons for its imposition of the particular sentence." 18 U.S.C. § 3553(c). If the sentence is within the guidelines range and exceeds 24 months, the court must state "the reason for imposing a sentence at a particular point within the range." Id. § 3553(c)(1). And if the sentence is outside the guidelines range, the court must not only state "the specific reason[s]" for the variance in open court but must also state those reasons "with specificity in a statement of reasons form." Id . § 3553(c)(2). The court's reason must be "sufficiently compelling to support the degree of the variance," Harris , 964 F.3d at 988, and it must be specific enough to allow for meaningful appellate review, United States v. Parks , 823 F.3d 990, 997 (11th Cir. 2016). We review de novo whether the district court complied with § 3553(c)(2), even if the defendant did not make a timely objection to the district court's failure to comply with it. Id. at 996–97 ; see also United States v. Brown , 879 F.3d 1231, 1234 (11th Cir. 2018).

At sentencing the district court properly determined that Oudomsine's total offense level was 11 and his criminal history category was I, resulting in a guidelines range of 8 to 14 months. The court varied upward and sentenced Oudomsine to 36 months — a sentence well below the 240-month statutory maximum penalty. Oudomsine contends that his sentence is procedurally unreasonable because the district court didn't adequately explain the upward variance. We disagree.

The court explicitly stated at sentencing that in varying upward it had considered the parties’ arguments, the sentencing guidelines, the advisory guidelines range, the presentence investigation report (PSR),¹ and the 18 U.S.C. § 3553(a) sentencing factors. The court also explained why the chosen sentence was appropriate in light of the § 3553(a) factors and undisputed facts in the record, and it repeated that explanation on the statement of reasons form.

The court's reasoning was that Oudomsine's fraud was not the kind of ordinary fraud contemplated by the guidelines because he used "his education, ability, and background to steal money from a national benevolence," taking $85,000 from a federal relief program designed to save the economy during the pandemic. In committing that crime, the court explained, Oudomsine had shown "blatant disregard for the people who needed these funds and for the people who paid for this program." Deeming deterrence to be the most important sentencing factor, the court determined that the upward variance sentence was "sufficient, but not greater than necessary, to meet the crime [Oudomsine] committed and to demonstrate to the world the likely result of the commission of the same or similar criminal act."

The district court was not required to state on the record that it explicitly considered each § 3553(a) factor or to discuss each factor. United States v. Kuhlman , 711 F.3d 1321, 1326 (11th Cir. 2013). It is enough that the record reflects the court's consideration of the sentencing factors and the parties’ arguments.

United States v. Cabezas-Montano , 949 F.3d 567, 609 (11th Cir. 2020). The court did give a sufficiently specific and compelling basis for the upward variance and complied with the requirements of § 3553(c)(2). See Parks , 823 F.3d at 997 ; Harris , 964 F.3d at 988.

Oudomsine also challenges the court's decision to treat his fraud as atypical compared to general, run-of-the-mill fraud cases. We see no error. The court didn't rely on any clearly erroneous facts in making that decision and adequately explained why it didn't consider this to be a mine-run case, particularly because Oudomsine used his education and ability to exploit a government relief program during a time of economic upheaval. See Kimbrough v. United States , 552 U.S. 85, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (explaining that a court's decision to vary from the guidelines may merit the "greatest respect" when the sentencing judge finds the case to be "outside the heartland" of cases contemplated by the Sentencing Commission) (quotation marks omitted). The district court also emphasized Oudomsine's history and characteristics, finding that he acted "with the facility and with the ability and with a level of venality that his age, his education, his upbringing, and his life experience [made] ... all the more culpable." There was no error, much less plain error.

II.

Oudomsine next contends that his sentence is substantively unreasonable. We review the substantive reasonableness of a sentence for abuse of discretion, considering the totality of the circumstances. Gall , 552 U.S. at 51, 128 S.Ct. 586. Oudomsine bears the burden of establishing that his sentence is unreasonable based on the record and the § 3553(a) factors. United States v. Rosales-Bruno , 789 F.3d 1249, 1256 (11th Cir. 2015).

The district court must impose a sentence that is "sufficient, but not greater than necessary," to comply with the purposes of 18 U.S.C. § 3553(a)(2). 18 U.S.C. § 3553(a).² The court abuses its discretion when it: "(1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors." United States v. Irey , 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation marks omitted). That rarely happens given the nature of the enterprise and the familiarity of district court judges with it. See Rosales-Bruno , 789 F.3d at 1256. We will vacate a defendant's sentence as substantively unreasonable only if we are "left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case." Irey , 612 F.3d at 1190 (quotation marks omitted).

A district court "has considerable discretion in deciding whether the § 3553(a) factors justify a variance and the extent of one that is appropriate."

Shaw , 560 F.3d at 1238 (quotation marks omitted). We may take the degree of variance into account, but we do not presume that a sentence outside the guidelines range is unreasonable and we must give due deference to the district court's decision that the § 3553(a) factors support its chosen sentence. Irey , 612 F.3d at 1186–87.

Oudomsine contends that his sentence is substantively unreasonable because the court gave undue weight to the need for deterrence factor without providing a compelling deterrence rationale. He claims the real reason the court varied upward was that it did not like him, and the reason it didn't was that of the $85,000 he obtained by fraud he spent $57,789 to buy a single Pokémon card.³

We are not persuaded. The record shows that the district court considered the importance of deterrence along with other § 3553(a) factors in varying upward. Those factors included the applicable guidelines range, Oudomsine's history and characteristics, the seriousness of his crime, the nature and circumstances of it, and the need to promote respect for the law and to provide just punishment. Oudomsine quarrels with how the district court weighed the § 3553(a) factors, including deterrence, but the weight given to each factor is left to the sentencing court's sound discretion. Kuhlman , 711 F.3d at 1327. We will not substitute our own judgment for the district court's by reweighing them. Id.

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. See Rosales-Bruno , 789 F.3d at 1254. We have emphasized that "general deterrence is a critical factor that must be considered and should play a role in sentencing defendants." United States v. Howard , 28 F.4th 180, 208 (11th Cir. 2022). Indeed, it...