NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0530n.06 No. 12-1654 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. FRANCI S A. SHARRAK, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRICT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : ROGERS, W HI TE, and AL ARCÓN, Circuit J udg es * AL ARCÓN, Circuit J udg e. Fr ancis S harr ak was found guilty by a jury of tax evasion and failing to file tax returns. The district court sentenc ed Sharr ak t o a wi thin-g uidelines term of 72

m o n t h s an d order ed him to pay $4.2 milli on in restitution. Sharra k timely appea led from hi s sentenc e. He arg ues t hat t he trial court abused i ts discretion in deny ing his reque st t o ad j o u rn his sentenc ing hear ing and by considering improper fac tors when it deter mined his sentenc e. We have jurisdiction under 18 U.S.C. § 1291, and we a ffirm his sentenc e. I Fr om the ear ly 1990s to 2006, Sharra k made milli ons o f dollars in unrepor ted income opera ting internet pornog raphy businesses and acting as a consultant for a s t rip club. Sharrak did

The Honora

ble Arthur L

. Alarc ón, Senior United States Circuit J udg e for the Ninth Circuit, * sitti ng by desig nation.No. 12-1654

United States v. Sharrak not pay any fede ral taxes from 1993 to 2002, and did not file on-time tax returns from 1996 to 2005. I n Dec ember 2003, Sharra k filed late income t ax re t u rns for tax y ear s 1996-2002 that indicated a total tax liability of $ 1 , 4 49,763 for those y ear s. He also filed an “Of fer in Compromise” with the I RS. The I RS rejected his off er. On Aug ust 24, 2010, fol l o wi n g a ten-da y jury trial, Sharra k was found g uilty on all four counts of the indictment char g ing tax evasion and failure to file tax returns. After the conviction but befor e sentenc ing, Sharra

k fired his reta ined counsel. The district court g rante d Sharra k’s attorney s’ motion to withdraw as counsel and explained to Sharra k the challeng es of self-r epre sent at i o n. Sharra k chose to repr esent himself for sentenc ing with the assistance of standby counsel appointed pursuant to the Criminal Justi ce Act. Sentencing was set for J anuar y 4, 2011, approximately three months later. Dkt. No. 81 at 48. On J anuar

y 3, 2011, at standby counsel’s reque st, the district court adjourne d the J anuar y 4, 2011 sentenc ing hear ing so that Sharra k could be evalua ted for competenc y . Dkt. No. 122 at 2. On April 27, 2011, the district court orde red that a competency hear ing on the record be held on May 4, 2011 and that “a status confe renc e on the rec o rd t o d et er mine Def endant’ s position on selfrepr esenta tion

. . . be h el d o n J u n e 7 , 2011.” Dkt. No. 129 at 2. Fur ther, the court order ed that “re g ardle ss of Def

endant’ s position on self-r epre sentation, objections to the prese ntence repor t shall be s u b m i t t ed t o the probation office r on or befor e J une 21, 2011.

. . [and that] reg ardle ss of Def endant’ s position on self-r epre sentation, a sentenc ing hear ing shall be held on July 19, 2011.” I d. On May

4, 2011, Sharra

k was found c ompetent to proce ed. Mi nute Order of 05/04/2011. On J une 7, 2011, t he court held a status confe renc e to deter mine whether Sharra k wanted to continue - 2 -No. 12-1654

United States v. Sharrak to repr esent him s el f. Sharra k stated he was not prepa red to make a decision due to “unexpected movement betwe en [jail] fac iliti es and his la ck of me dication,” so the c ourt adjourne d the hea ring until June 30, 2011. D kt. No. 135. On J une 22, 2011, Sharr ak moved for another adjournment of the status confe renc e on the issue of his self-r epre sentation due to his inability to acc ess hi s l egal materia ls, cause d by his movement betwee n detention fac iliti es. Dkt. No. 136. The court adjourne d the hear ing until J uly 14, 2011. Dkt. No

. 1 3 7

. At standby counsel’s reque st, the court re- set the status confe renc e ag ain sever al times “due to unfore seea ble circ umstances.” Dkt. No. 138; see also, Minute Orde r of 06/24/2011 (re -setting confe renc e f o r 0 7 /1 9 /2 0 1 1 ) ; M in

u te Orde r of 07/08/2011 (re

setting confe renc e for 07/18/2011); Minute Orde r o f 07/15/2011 (re -setting confe renc e for 08/01/2011); Minute Orde r of 07/28/2011 (re -setting confe renc e for 08/15/2011). On August 15, 2011, the court ag ain g rante d an ad j ournment of the status confe renc e on Sharra k’s selfrepr esenta tion until November 17, 2011, “to allow Def endant adequate time to confe r with standby counsel.” Dkt. No. 138. On Novembe r 17, 2011, S harr ak made a final decision t o repr esent himself. Dkt. No. 139 at 1. “Dur ing the hear ing, the court o b s er v ed , an d Def endant and [st andby counsel] stated, that Def endant was not suffe ring from any defic its in his compre hension or competenc e.” I d. “The court further informed the parties that the schedule for objections, motions, an d t ri al sentenc ing memoranda previously established in its Aug ust 17, 2011 order would rema in in place .” Howeve r, the court order ed that the sentenc ing hear ing then schedule d for J anuar y 31, 2012 be resc heduled for Fe bruar y 9, 2012. I d. On Dec ember 7, 2011, Sharra k filed a motion seeking additional time to file objections to the prese ntence repor t. Dkt. No. 140. T he court g rante d the motion and order ed

- 3 -No. 12-1654

United States v. Sharrak Sharra k to file any objections to the prese ntence repor t on or befor e J anuar

y 19, 2012. Dkt. No. 141. The court order ed that the sentenc ing hear ing g o forwa rd as schedule d on Fe bruar y 9, 2012. I d. At the hear ing on Fe bruar

y 9, 2012, the court stated that “it would resc hedule sentenc ing one final time and Def endant would no longe r be permitted to fore stall the conclusion of this case .” Dkt. No. 142. I n its order of Fe bruar

y 17, 2012, the court order ed that standby counsel “file direc tly on the court’s docket any objections to the prese ntence repor t” on or befor e Marc h 12, 2012, and any “Statement of P roposed Moti on for Guideline Depa rture,” or “St atement of Proposed S en t en ce Var iance ,” or both, on or befor e Mar ch 19, 2012. I d. The court order ed S harr ak to file “whateve r obj ections to the prese ntence repor

t he may have on or befor e Marc h 19, 2012.” I d. The court also provided that “De fenda nt may adopt any objection that may have been sug g ested by standby counsel,” and set new deadlines for the Gover

nment’s response s. I d. The court order ed that Sharra k’s sentenc ing hear ing be held on Apr il 30, 2012. I d. On Marc h 8, 2012, Way

ne County J ail staff confiscated a laptop from Sharra k’s cell. As the Gover nment explained in its opposition t o Sharra k’s motion for an a djournment of the se ntencing hear ing, f iled on April 5, 2012, an investig ation by the United States Attorney ’s Off ice unc overe d evidenc e that Sharra

k was using the internet-e quipped computer for, among other things, “spea king with a fourteen- y ear -old g irl, s o m et i mes via a three -wa y phone connection, and discussing drug s, sexual experience s, specific sexual encounte rs, and his past rela tionship with her.” Dkt. No. 149 at 4-5. “[T] he Way

ne County Sheriff’ s Depa rtment was contac ted to find out whether defe ndant did, i n fa ct , h av e acc ess to a private persona l computer in his jail cell.” I d. at 5. “[P] ersonne l i n t h e internal affa ir s unit of t he W ay ne C ounty Sheriff’ s Depa rtment deter

mined that defe ndant di d not - 4 -No. 12-1654

United States v. Sharrak have written authorization from [t he district] court or any other entity to have acc ess to or possession of a private, personal computer in his jail cell, and . . . seized one notebook-sty le l aptop computer with a built-in ‘ce ll phone’ containing a SI M car d, one external hard drive, one flash drive, one set of ea rphones, one wirele ss mouse, and a pow er c ord direc tly from def endant in his ce ll.” I d. On Marc h 19, 2012, Sharra k’s standby counsel filed objections to the loss amount and to the sophisticated m eans enhanc ement contained i n the pre sentenc e re port. Dkt. No. 145 at 6, 26. On Marc h 12, 2012, Sharra

k filed objections to the prese ntence repor t and on Marc h 19, 2012, he filed

a motion adopting i n p ar t t h e o bjections to the prese ntence repor t filed by standby counsel. On Marc h 20, 2012, Sharra

k filed a motion seeking a 60-day adjournment of the sentenc ing hear ing on the g round that he was “totally unable to pr epar e for sentenc ing” without his laptop. Dkt. No. 146 at 3. The court denied the motion and reminded Sharra k that “the court [had alre ady ] informed [hi m] that his near ly two-y ear eff ort to fore stall the conclusion of this case would no longe r be permitted, and the court would not g ra n t any additional adjournments of sentenc ing absent the most extraordinary circ umstances.” Dkt. No. 151. The district court had previously noted the “De fenda nt’s unwillingness to addre ss the prese ntence repor t despite the repor

t being a v ailable since November 2010.” Dkt. No. 142 at 3. Addi t i o n al ly , the court noted that the Gover nment had promptly offe red to provide S harr ak’s standby counsel with elec tronic copies of any specific files from his laptop but that Sharra k “fa iled to identify any

files that he be lieve[d] he [was] entitled to possess.” Dkt. No. 151 at 4 (citing Dkt. No. 149 at 19). At the sentenc ing hear ing, Sharra k adopted his standby counsel’s objections to the loss amount and to the sophisticated means enhanc ement in the pre sentenc e re port. Dkt. No. 168 at 6-7. - 5 -No. 12-1654

United States v. Sharrak At the sentenc ing proce eding s on April 30, 2012, the district cour t o v er rul ed Sharrak’s objections to the prese ntence repor t except for one corr ection at ¶ 12, which did not impact Sharrak’s sentenc e, but which erroneously stated t hat t he information provid ed to the U.S

. Probation Offic e was for y ear s 1997 throug h 2005, instead of 1997 throug h 2002. I d. at 19. The c ourt ca lculated a tax loss of $4.2 milli on, using Sharra k’s own repor

ted tax liability of approximately $1.4 milli on and adding penalties and interest. The court applied an enhanc ement for “sophisticated means,” making the g uideline sentenc ing rang e 63-78 mo n t h s . Dkt. No. 157 at 5, 9-10, 61. The district court

overr ul ed S h arrak’s reque st for a downwar d depar ture or varia

nce based on diminis hed mental capa city

. Considering the § 3553(a) fac tors, the nonbinding gu i d el i n e rang e, and Sharrak’s “excitability and distractibility ,” the district court sentenc ed Sharra k to 72 months. Dkt. No. 168 at 61; Dkt. No. 157 at 2. Sharra k filed timely

this appeal. I I On appea l, Sharra

k arg ues that the district court abused its discretion when it denied his fifth

re q u es t fo r a continuance of his sentenc ing. We revie w the denial of a continuance for abus e o f discretion. Morris v. Slappy , 461 U.S. 1,11- 12 (1983); United States v. Lewis , 605 F.3d 395, 401 (6th Cir. 2010). The district court abuses its discretion when it eng ag es in “an unrea soning and arbitra ry insistence upon expeditious ness in the fac e of a justifiable reque st for delay .” United States

v. Vasquez , 560 F.3d 461, 466 (6th Cir. 2009) (quoting Morris , 461 U.S. at 11-12) (interna l quotation marks omitted). “Whether a continuance is appropr iate in a particula r case depends on the fac ts and circ umstances of that case . . . wi th the trial judge considering the leng th of delay , previous continuance s, . . . whether the delay is purposef ul or is cause d by the acc used,

. . . the complexit y of - 6 -No. 12-1654

United States v. Sharrak the case , and whether deny ing the co n t i n u ance will lead to identifiable prejudice .” W ilson v. Mintzes , 761 F.2d 275, 281 (6th Cir. 1985) (citations omitted). For the err or to be reve rsible, the defe ndant must show that he was actua lly prejudice d by the denial of the reque sted conti n u an ce. Burton v. Renico , 391 F.3d 764, 772 (6th Cir. 2004). “‘A ctual prejudice ’ is established ‘by showing that a continuance would have

. . . added something to the defe nse.’” United States v. Crossley , 224 F.3d 847, 855 ( 6th Cir. 2000) (quoting United States v. King , 127 F.3d 483, 487 ( 6th Cir. 1997)). I n its order deny

ing Sharra k’s fifth motion for adjournment, the district court noted that it had previously “informe d Def endant that his near ly two-y ear eff ort to fore stall the conclusion of this case would no longe r be permitted, and the court would not g rant any adjournments of sentenc ing absent the most extraordinary circ umstances.” Dkt. No. 151 at 1-2. The district court also addre ssed eac h of Sharra k’s arg uments that he neede d more time to prepa re for sentenc ing. I n response to Sharrak’s arg ument that an adjournment was war rante d based on the complexit y of the leg al issues involved, the court deter

mined that 18 months to revie w and resp o n d t o t h e PSR was adequa te and that Sharra k’s self-r epre sentation did not “entitle him to repe ated adjournments of his sentenc ing” even if he “believe [d] the issues to be co m p l ex . ” I d. at 2. Wit h reg ard to Sharra k’s arg ument that he neede d more time to prepa re beca use he had been unable to take his presc ribed medication on three

occa sions in two months, the court found that Sha rra k “wa s able to draf t a coher ent, five-pa g e motion seeking an adjournment of hi s s en t en ci n g ,” which sug g ested to the court that Sharrak had “maintained the mental and phy sical fac iliti es nece ssary to proce ed with sentenc ing.” I d. at 3. Finally , the court reje cted Sharra k’s co n t en t i o n that he had been unable to prepa re for sentenc ing afte r his laptop was confiscated beca use he had “re lied upon the computer since Aug ust 2010 to - 7 -No. 12-1654

United States v. Sharrak assist him in his defe nse.” The district court found that Sharra k’s claim “[was] direc tly contra dicted by Def endant’ s own hand-w ritten motion filed in October 2010, in which he stated that he ‘has had ONL Y the use of bowling/g olf pencils’ with which to file motions.’” I d. (citing Dkt. No. 87 at 2). The court also noted that neither the United States Marsha l Service , nor the Way ne County Sheriff’ s Depa rtment, nor the court itself had “author ize[ d] possession of any elec tronic device s in [S harr ak’s] cell.” I d. Sharra k has not demons t ra t ed that the district court acte d unrea sonably or arbitra rily in deny ing his motion to adjourn his sentenc ing for a fifth time. I nstead, the rec ord shows that the court considere d the appropr iate fac tors when it denied Sharra k’s motion for a continuance , including “the leng th of delay , previous continuance s, . . . whether the delay is pu rp o s ef u l o r i s cause d by the

acc used,

. . . the complexit y of the case , and whether deny ing the continuance wi l l lead to identifiable pre

judice.” W

ilson , 761 F.2d a t 281. Fur ther, S harr ak h as n o t shown actua l prejudice

. See United States v. Faulkner , 538 F.2d 724, 729-30 (6th Cir. 1976) (holding that “we look f or a showing from the defe ndant of prejudice , i.e., a showing that the continuance wo uld have

. . . added something to the defe nse.”)

. Sharrak sug g ests that but for the confiscation of his laptop, what “would have [been] added” to his defe nse, Faulkner , 538 F.2d at 7 3 0 , was additional objections to the PSR

. Reply Br

. at 7. As the district court noted, howeve r, the Gover nment o ff

ere d to provide standby counsel with any “leg ally permissible items” from the laptop but Sharra k “fa iled to identify any files” that he wanted. I d.; Dkt No. 151 at 3-4. Fur

ther, Sharra

k’s PSR was available to him beg inning i n No v ember 2010. The district court i n i t i all y order ed Sharra k to file his objections to the PSR on or befor e Dec ember 8, - 8 -No. 12-1654

United States v. Sharrak 2011, a full three -months befor e h i s l ap top was confiscated. Dkt. No. 142 at 2, 3. The court extended the deadline for Sharra k’s objections to J anuar

y 19, 2012. The district court g ave Sharrak

a third deadline of Marc h 19, 2012, and reque sted that standby counsel also file any objections and proposed g uideline depar tures or sentenc e varia

nces, which Sharra k ultimately adopted in part. He has specifie d no other objections that he was preve nted from raising due to the district court’s denial of his motion for a continuanc e. I I I Sharra k arg ues that the district court abused its discretion by imposing a proce durally and substantively unrea sonable s e n te n c e w h e n it sentenc ed him to 72 months’ imprisonment. Procedur al

rea sonablene ss is revie wed “under a defe rential abuse- of-discr etion s t andar d,” when, as here , the district court did not ask the B o s t i c question. United States v. Ross , 703 F.3d 856, 884 (6th Cir. 2012) (citing United States v. Chiolo , 643 F.3d 177, 180 n.1 (6th Cir. 2011)); see also United States

v. Bostic , 371 F.3d 865, 872-73 (6th Cir. 2004) (re quiring district c ourts to a sk the parties whether they have objections to the sentenc e pronounce d). This Court also revie ws the substantive

rea sonablene ss of a de fenda nt’s sentenc e “unde r a defe rential abuse- of-discr etion standard.” Gall

v. United States , 552 U.S. 38, 41 (2007). “A sentenc e may be considere d substantively unrea sonable when th e d i s t ri ct court selec ts a sentenc e arbitra rily , bases the sentenc e on impermissible fac tors, fails to consider rele vant sentenc ing fa ct o rs, or g ives an unrea sonable amount of weig ht to any pertinent fac tor.” United States v. Robinson , 669 F.3d 767, 774 (6th Cir. 2012) (interna l quotation marks omitted). When a sentenc e falls within the g uideline rang e, “a presumption of rea sonablene ss applies.” United States v. Mosley , 635 F.3d 859, 865 (6th Cir. 2011) (citing United States v. Vonner , - 9 -No. 12-1654

United States v. Sharrak 516 F.3d 382, 389 (6th Cir. 2008) (e n b an c)). To overc ome this presumption, a defe ndant “must articula te some rea son that his sentenc e is not rea sonable.” United States v. W ard , 447 F.3d 869, 872 (6th Cir. 2006). Sharra k contends that the district court reli ed on an improper sentenc ing fac tor when deter mining his sentenc e, to wit his “involvement in adult enter tainment bars and his continuing involvement with these bars while in jail.” Appellant’s Br

. at 51. The district court considere d Sharra k’s employ

ment situation in response to his objection to a sophisticated means enhanc ement, and in response to his reques t for a downwar d depar ture from the sentenc ing g uidelines due to diminis hed capa city

. The court conclude d t h at ample evidenc e both supported the sophisticated

means enhanc ement and contra dicted Sharra k’s asser tion of diminis hed capa city

. This evidenc e included substantial testimony that Sharra k “oper ated some rea lly , rea lly succe ssful businesses

. . . g ave o rd er s . . . wh i pped people into shape

. . . cut costs

. . . maxi miz ed profits

. . . made a lot of money for a lot of people

. . . in this rela tively unusual and unsavory field.” Dkt. No. 168 at 42. The d i strict court also ref

err ed to Sharra

k’s business in its analy sis of his post-conviction cond u ct , including Sharra

k’s jail phone calls t o h is business associate s that show “he’ s continuing in that

same course of conduct [and that] should be taken into acc ount with reg ard to sentenc ing.” Dkt. 168 at 56. Post-conviction conduct is a proper 3553(a) factor, a n d has been held by this Court to be a proper basis for a

n upwar d varia

nce. See U

nited States v.Barnett , 460 F.App’ x 582, 589 (6th Cir. 2012); United States v. Ragland , 226 F.App’ x 507, 511 (6th Cir. 2007). Sharra k also contends that his sentenc e is “excessive” for a “first time mentall y ill defe ndant.” Appellant’s Br

. at 57. After deter mining that Sharra

k did not prese nt adequate evidenc e - 10 -No. 12-1654

United States v. Sharrak of diminis hed capa city , the district court never theless considere d Sharra k’s potential mental health diag noses when de termining his sentence . The c ourt stated: Under Section 3553(a) of T i t l e 1 8 , I need to take into acc ount the nature and circ umstances of the offe nse, the history , t h e char acte ristics of the defe ndant, including his hy

pera ctivity and possi ble bi polar disorder, but to i m p o s e a sentenc e that ref lects the seriousness of the offe nse and pro m o t e respect for the law; that provides objec tively

just punishm ent and that pr ovides for a dequate deter renc e. Dkt. No. 168 at 60. The district court considere d the fac t that 96 months was the maxi mum available term under

the g uidelines, if the cour t wer e to orde r that the ter ms be serve d consec utively , which exceede d the 78-month high- end of the g uideline rang e for concur rent terms. The court found that “g oing bey ond the guideline range would not nece ssarily be gre ater than appropriate, gr eate r t han

nece ssary .” I d. at 16. The district c ourt ultimately deter mined, howeve r, that sentenc ing Shar rak to a term of 72 months, well within the g uidelines rang e, was appropr iate beca use of the “def

endant’ s persona lity

char acte ristics, his ex citability and distrac tibili ty .” I d. at 61. Under this Circuit’s prec edent, Sha rr ak ’s s entenc e is entitled to a presumption of

rea sonablene ss. W

ard , 447 F.3d at 872. Be cause the district court provided a sufficie nt basi s to revie w the sentenc e by articula ting the 18 U.S.C. § 3553(a) fa ctors that it considere d, and beca use the sentenc e selec ted was within the rang e sug g ested by the Guidelines, the burden is on Sharrak to articula te some re ason why his sentence is not reasona ble, which he has fa iled to do. I V For the fore g oing r easons, Shar rak’ s sentence is AF F IRMED

.

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