[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11265

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

BENJAMIN JULIEN BORSANI, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:18-cr-20328-FAM-1

____________________

USCA11 Case: 21-11265 Date Filed: 05/27/2022 Page: 1 of 6
2 Opinion of the Court 21-11265

Before ROSENBAUM, GRANT, and EDMONDSON, Circuit 

Judges.

PER CURIAM:

Benjamin Borsani appeals the 24-month sentence imposed 

by the district court after Borsani pleaded guilty to bank fraud and 

to mail theft, in violation of 18 U.S.C. §§ 1344 and 1708. No reversible error has been shown; we affirm.*

Borsani’s convictions arise from these facts. In March 2016 

-- while Borsani was living in a rental house in Miami Beach, Florida -- a check for over $123,000 arrived in the mail. Although the 

check was written out to the “Theodore & Beatrice Foster Irrevocable Life Insurance Trust,” Borsani affixed a stamped endorsement on the back of the check and deposited the check into his own 

business checking account. 

The trustee of the irrevocable trust filed a civil lawsuit 

against Borsani and was awarded a final judgment against Borsani 

for over $369,000. Shortly after the civil judgment was entered in 

* We note that Borsani completed his term of imprisonment on 12 October 

2021 and is now serving his 5-year term of supervised release. Because a successful appeal could impact on the remaining portion of Borsani’s term of supervised release, this appeal is not moot. See Dawson v. Scott, 50 F.3d 884, 

886 n.2 (11th Cir. 1995) (concluding in a habeas context that an appeal was not 

moot -- even though the defendant had been released from federal custody --

because the defendant’s challenge to the length of his custodial sentence could 

alter his supervised-release term). 

USCA11 Case: 21-11265 Date Filed: 05/27/2022 Page: 2 of 6
21-11265 Opinion of the Court 3

March 2017, Borsani (a dual citizen of Italy and Belgium) fled to 

Europe. 

In 2018, a federal grand jury returned an indictment charging Borsani with the offenses underlying this appeal. Borsani was 

later arrested in Italy in January 2020 and was extradited to the 

United States in September 2020. Borsani pleaded guilty pursuant 

to a written plea agreement. Following a sentencing hearing, the 

district court sentenced Borsani to 24 months’ imprisonment to be 

followed by 5 years’ supervised release.

On appeal, Borsani contends that the district court erred by 

denying him a two-level reduction under U.S.S.G. § 3E1.1(a), for 

acceptance of responsibility. Borsani says the district court -- in 

making its acceptance-of-responsibility determination -- relied impermissibly on Borsani’s failure to make voluntary restitution payments: conduct Borsani says pre-dated the federal indictment in 

this case.

We review a district court’s denial of an acceptance-of-responsibility adjustment for clear error. See United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005). Because the “sentencing 

judge is in a unique position to evaluate a defendant’s acceptance

of responsibility,” the sentencing judge’s determination “is entitled 

to great deference on review.” Id. Under this deferential standard, 

we will set aside a district court’s denial of an acceptance-of-responsibility reduction only if “the facts in the record clearly establish 

that the defendant has accepted responsibility.” Id. at 1022-23. 

USCA11 Case: 21-11265 Date Filed: 05/27/2022 Page: 3 of 6
4 Opinion of the Court 21-11265

The Sentencing Guidelines allow for a two-level reduction 

in the defendant’s offense level if the defendant “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 

3E1.1(a). “The defendant bears the burden of clearly demonstrating acceptance of responsibility and must present more than just a 

guilty plea.” United States v. Wade, 458 F.3d 1273, 1279 (11th Cir. 

2006) (quotations omitted); see U.S.S.G. § 3E1.1 comment. (n.3) 

(“A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right.”). Although a guilty 

plea is considered significant evidence of acceptance of responsibility, that evidence “may be outweighed by conduct of the defendant 

that is inconsistent with such acceptance of responsibility.” 

U.S.S.G. § 3E1.1 comment. (n.3).

We have described acceptance of responsibility as “a multifaceted concept” that encompasses “the offender’s recognition of 

the wrongfulness of his conduct, his remorse for the harmful consequences of that conduct, and his willingness to turn away from 

that conduct in the future.” See United States v. Scroggins, 880 

F.2d 1204, 1215 (11th Cir. 1989). Among the factors a sentencing 

court may consider in determining whether a defendant has accepted responsibility is the defendant’s “voluntary payment of restitution prior to adjudication of guilt.” U.S.S.G. § 3E1.1 comment. 

(n.1). The sentencing court may not, however, deny an acceptance-of-responsibility reduction based solely on the defendant’s pre-indictment criminal activity. Wade, 458 F.3d at 1280-81. 

USCA11 Case: 21-11265 Date Filed: 05/27/2022 Page: 4 of 6
21-11265 Opinion of the Court 5

The record supports adequately the district court’s determination that Borsani demonstrated no clear acceptance of responsibility for purposes of a reduction under section 3E1.1(a). Contrary 

to Borsani’s assertion on appeal, the district court did not rely solely 

on Borsani’s pre-indictment conduct in assessing Borsani’s acceptance of responsibility. The district court was permitted to consider Borsani’s failure to pay restitution to the victim of his fraud. 

SeeU.S.S.G. § 3E1.1 comment. (n.1). And Borsani’s failure to make 

any effort at restitution -- despite evidence that he had the means 

to do so -- continued well after federal charges were brought 

against Borsani in this case. Borsani’s continued refusal to pay back 

the money he stole is pertinent conduct inconsistent with showing 

acceptance of responsibility. 

The district court also made clear that Borsani’s failure to 

pay restitution was not the chief reason for the district court’s decision. Instead, the district court explained that Borsani’s demeanor and attitude during the sentencing hearing contributed to 

the district court’s determination that Borsani had not accepted responsibility for his offenses. During the sentencing hearing, 

Borsani blamed others -- including the fraud victim and the bank --

for Borsani’s decision not to pay restitution. Borsani also faulted 

the victim for not making adequate efforts to enforce the civil judgment against Borsani when Borsani was in Brussels. Borsani indicated further that he refused to pay restitution in part because the 

victim sought treble damages against him in the related civil suit 

USCA11 Case: 21-11265 Date Filed: 05/27/2022 Page: 5 of 6
6 Opinion of the Court 21-11265

and because the victim had already received a $500,000 settlement 

payment from the bank. 

Nothing in the record demonstrates clearly that Borsani 

showed remorse for the harm that he caused or recognized fully 

the wrongfulness of his conduct. The district court committed no 

clear error in determining that Borsani failed to accept responsibility for his offenses and was, thus, unentitled to a two-level reduction under section 3E1.1(a). 

AFFIRMED.

USCA11 Case: 21-11265 Date Filed: 05/27/2022 Page: 6 of 6