FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 03, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-12339

Non-Argument Calendar

________________________

D. C. Docket No. 08-21012-CR-JLK

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus

ROSA STEWART, 

Defendant-Appellant. 

________________________

No. 09-12341

Non-Argument Calendar

________________________

D. C. Docket No. 08-21012-CR-JLK

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,
versus

CARLOS STEWART, 

Defendant-Appellant.

________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

(May 3, 2010)

Before TJOFLAT, BIRCH and MARTIN, Circuit Judges.

PER CURIAM:

Rosa Stewart (“Rosa”) and Carlos Stewart (“Carlos”) (collectively “the

Stewarts”) pled guilty to conspiracy to commit mail fraud, in violation of 18

U.S.C. § 1349, and the district court sentenced them to prison terms of 60 months. 

They now appeal their sentences, contending (1) that the district court erred in

determining their offense levels under the Sentencing Guidelines by refusing to

afford them a three-level reduction pursuant to U.S.S.G. § 2X1.1(b)(2), and (2)

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that their sentences are unreasonable. We consider these contentions in turn. 

I. 

The Guideline applicable to conspiracy to commit mail fraud is U.S.S.G.

 “We review the district court’s application of the guidelines de novo, and its factual 1

findings for clear error.” United States v. Watkins, 477 F.3d 1277, 1279 (11th Cir. 2007). 

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§ 2X1.1, which covers attempt, solicitation, and conspiracy offenses not covered

by a specific offense Guideline. U.S.S.G. § 2X1.1. When the offense of

conviction is a conspiracy, § 2X1.1(b)(2) provides for a three-level reduction to

the defendant’s base offense level:

unless the defendant or a co-conspirator completed all the acts the

conspirators believed necessary on their part for the successful

completion of the substantive offense or the circumstances

demonstrate that the conspirators were about to complete all such acts

but for apprehension or interruption by some similar event beyond

their control.

U.S.S.G. § 2X1.1(b)(2). The commentary to § 2X1.1 offers the following

clarification:

In most prosecutions for conspiracies or attempts, the

substantive offense was substantially completed or was

interrupted or prevented on the verge of completion by

the intercession of law enforcement authorities or the

victim. In such cases, no reduction of the offense level is

warranted. Sometimes, however, the arrest occurs well

before the defendant or any co-conspirator has

completed the acts necessary for the substantive offense.

Under such circumstances, a reduction of 3 levels is

provided under § 2X1.1(b)(1) or (2).

U.S.S.G. § 2X1.1, comment. (backg’d).

In United States v. Khawaja, we concluded that defendants convicted of

conspiracy to commit money laundering were entitled to the three-level reduction

in § 2X1.1(b)(2) for the following reason:

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The record shows that although the conspirators intended

to launder $2 million, they managed to launder only

$570,556 prior to apprehension. The conspiracy was

dependent on the IRS’s fronting of the purported drug

money, and the record does not show that at the time the

IRS terminated its sting operation, Appellants had

arranged for specific transactions to occur in the future.

Accordingly, the conspirators had not taken crucial steps

(including for example, preparing falsified

documentation, securing cashier’s checks, or arranging

meetings for the exchange) to launder the remaining

balance of $2 million. Consequently, Appellants neither

believed that they had completed all the acts necessary

on their part nor were they about to complete all such

acts for the laundering of the entire $2 million.

118 F.3d 1454, 1458 (11th Cir. 1997). 

Applying Khawaja, we subsequently held in United States v. Puche that

money-laundering conspirators were similarly entitled to the three-level reduction

because, although they previously had laundered over $700,000, they had not

“taken crucial steps, such as contacting the [undercover] agents or preparing

paperwork for more transfers, to launder the remaining six million dollars.” 350

F.3d 1137, 1156 (11th Cir. 2003). Indeed, the defendants in Puche specifically

told the undercover agent that they “wanted to hold off on [future] transfers” for

the time being. Id.

In United States v. Lee, we held that defendants convicted of mail fraud

were not entitled to the analogous three-level reduction for attempt offenses in

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§ 2X1.1(b)(1). 427 F.3d 881, 893-94 (11th Cir. 2005); see U.S.S.G.

§ 2X1.1(b)(1). We arrived at this conclusion because, although the defendants

submitted fraudulent checks that were not honored, they had nonetheless

“clearly . . . completed all the acts necessary to commit mail fraud” because the

fact that those fraudulent checks were not honored was beyond their control. Lee,

427 F.3d at 894 (emphasis added) (explaining that the defendants had mailed

several letters and “completed the acts underlying their scheme to defraud”).

More recently, in Watkins, we addressed whether the analogous three-level

reduction for solicitation offenses in § 2X1.1(b)(3)(A) applied when the defendant

solicited an undercover agent to commit arson. 477 F.3d at 1278; see U.S.S.G.

§ 2X1.1(b)(3)(A). After we “adopt[ed] the approach taken in [its] application of

§ 2X1.1(b)(2),” the issue became “whether or not the person solicited had taken

all the ‘crucial steps’ necessary to demonstrate to the defendant that the offense

was about to be completed.” Watkins, 477 F.3d at 1281 (emphasis in original). 

We ultimately remanded the case to the district court for further findings, because

“the only steps taken were a diagram and a discussion about the placement of the

incendiary devices. There was no evidence, however, that the undercover officer

had obtained the actual devices or the means to complete the arson.” Id. 

In this case, the Stewarts and their co-conspirators had taken “crucial steps”

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towards completing the substantive mail fraud offense at the time law enforcement

intervened. This is so because they had established a detailed plan to carry out the

offense, they had the means to execute the plan, and they were on the verge of

executing the plan. The district court thus did not err by declining to award the

Stewarts a three-level reduction, pursuant to § 2X1.1(b)(2). We therefore turn to

the Stewart’s claim that their sentences are substantively unreasonable.

II.

The Stewarts argue that because (1) their 60-month’s prison terms are at least

double their correctly-determined Guidelines sentencing ranges, (2) no other

codefendant was sentenced above his or her Guidelines sentencing range, (3) the

Government did not request a variance from the sentencing range for either Rosa

or Carlos, and (4) the district court failed to state with the requisite specificity why

such dramatically enhanced sentences were warranted, their sentences are

substantively unreasonable given the sentencing factors of 18 U.S.C. § 3553(a).

They further contend that (1) the district court ignored important § 3553(a)

mitigating factors, (2) the court’s statement that they had a “cavalier disregard for

the law” was unfounded, and (3) the court’s theory that the planned arson that

underlay the mail fraud scheme had the potential of causing “incredible harm to

homes nearby” and danger to individuals traveling on nearby roads is unsupported

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by the record.

We review a final sentence for reasonableness in light of the 18 U.S.C. § 3553(a)

factors. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). 

Review for reasonableness is deferential and is analyzed under the abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597,

169 L.Ed.2d 445 (2007). A sentence outside the Guidelines sentencing range is

not presumed unreasonable, but rather, we “may consider the extent of the

deviation,” giving “due deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.” Id. We will not substitute

the court’s judgment in weighing the relevant factors. United States v. Amedeo,

487 F.3d 823, 832 (11th Cir. 2007). 

The party challenging a sentence bears the burden of establishing that the sentence

is unreasonable in light of both the record and the § 3553(a) factors. United States

v. Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007). The review for substantive

unreasonableness involves an examination of the totality of the circumstances,

including an inquiry into whether the § 3553(a) factors support the sentence in

question. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008), cert.

denied, 129 S.Ct. 2848 (2009). If a district court decides that a sentence outside of

the Guidelines sentencing range is warranted, it “must consider the extent of the

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deviation and ensure that the justification is sufficiently compelling to support the

degree of the variance.” Gall, 522 U.S. at 50, 128 S.Ct. at 597.

A sentence may be substantively unreasonable if it does not achieve the purposes

of sentencing stated in § 3553(a). United States v. Pugh, 515 F.3d 1179, 1191

(11th Cir. 2008). Moreover, when considering whether a defendant’s sentence is

reasonable, we have compared the sentence actually imposed to the statutory

maximum. See, e.g., United States v. Valnor, 451 F.3d 744, 751-52 (11th Cir.

2006) (upholding sentence as reasonable in part because it was “appreciably below

the statutory maximum”). “[T]here is a range of reasonable sentences from which

the district court may choose.” United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005). 

An outside-the-Guidelines sentence need not be justified by “extraordinary

circumstances,” and the Supreme Court has rejected the use of “a rigid

mathematical formula that uses the percentage of a departure as the standard for

determining the strength of the justifications required for a specific sentence.” 

Gall, 552 U.S. at 47, 128 S.Ct. at 595. The fact that we reasonably might conclude

that a different sentence is appropriate is not sufficient to warrant reversal. United

States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). 

The § 3553(a) factors include, among other things: (1) the applicable guidelines

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range; (2) the nature and circumstances of the offense; (3) the history and

characteristics of the defendant; (4) the need for the sentence imposed to reflect

the seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense; (5) the need for adequate deterrence to criminal

conduct; (6) protection of the public from further crimes of the defendant; and (7)

the need to avoid unwarranted sentencing disparities. 18 U.S.C. § 3553(a)(1)-(6). 

Based on the record, both Rosa and Carlos have failed to carry their burden of

showing that their sentences were substantively unreasonable, given that the

district court considered the mitigating factors noted by their counsel, gave each of

their cases an individualized review, explicitly stated that it considered the § 3553

factors (and did so in substance on the record), and ultimately opined that the

nature, circumstances, and seriousness of the offense weighed in favor of

imposing prison terms of 60 months. Moreover, Rosa’s and Carlos’s sentences are

well below the statutory maximum of 20 years imprisonment, and the court did not

need to show extraordinary circumstances to justify the outside-the-Guidelines

sentences. Accordingly, the district court committed no error in calculating the

Guidelines sentencing range, nor did it impose unreasonable sentences.

AFFIRMED. 

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