FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 22, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-15104

Non-Argument Calendar

________________________

D. C. Docket No. 05-00109-CR-T-24-MAP

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JOEL P. RUBEN, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

 (May 22, 2006)

Before DUBINA, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Joel Ruben appeals his sentence for embezzlement and embezzlement of

Veterans Administration (“VA”) funds while acting as a fiduciary, in violation of

18 U.S.C. § 641 and 38 U.S.C. § 1601. On appeal, he argues that his sentence was
Because we find no error based on the district court’s § 3553(a) analysis, we need not, 1

and do not, reach the issue of whether there was plain error.

As for the government’s jurisdictional argument, we have jurisdiction to review the

reasonableness of Ruben’s sentence, pursuant to 18 U.S.C. § 3742. See United States v. Martinez,

434 F.3d 1318 (11th Cir. 2006) (rejecting government’s threshold argument that this Court lacks

jurisdiction under 18 U.S.C. § 3742(a) to review a sentence within a correctly-calculated guideline

range for reasonableness; concluding that “a post-Booker appeal based on the ‘unreasonableness’

of a sentence, whether within or outside the advisory guidelines range, is an appeal asserting that

the sentence was imposed in violation of law pursuant to § 3742 (a)(1)”). Pursuant to our wellestablished prior-precedent rule, this panel is bound to apply, and may not reconsider Martinez. See

United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004) (discussing prior-precedent rule).

2

unreasonable in light of the factors set forth in 18 U.S.C. § 3553(a). After careful

review, we find no error and affirm.1

On March 16, 2005, Ruben was charged in a two-count indictment with

embezzlement and embezzlement of VA funds while acting as a fiduciary for his

mother, in violation of 18 U.S.C. § 641 and 28 U.S.C. § 1601. He pled guilty and

proceeded to sentencing.

According to the presentence investigation report (PSI), Ruben’s mother,

Betty Werner, began receiving VA Dependency and Indemnity Compensation

(DIC) in 1976 after the death of her first husband in World War II. In 1995,

Werner was placed in an institution due to severe mental problems, at which time

Ruben obtained a durable power of attorney, placing him in a fiduciary relationship

with his mother. Over the next eight years, Ruben sent approximately ten letters to

the VA, all of which were purportedly signed by his mother and directed the
3

deposit of DIC benefits into Ruben’s various bank accounts. Ruben never used

any of this money to make payments to the facility caring for his mother, who died

in July 2004.

Sometime in late 2003, the VA began an investigation into the possible

misappropriation of Werner’s DIC payments. After providing a series of

conflicting explanations as to the whereabouts of the DIC payments, Ruben

eventually admitted that he had used the money to pay off his own financial

obligations and to care for his ill son. He also admitted that he received

approximately $800 per month for nearly ten years. According to VA financial

records, the total amount of misappropriated funds was $86,402. 

The PSI recommended a base offense level of 6, under U.S.S.G §

2B1.1(a)(2), and the following adjustments: (1) an 8-level enhancement based on

the amount of money embezzled, U.S.S.G. 2B1.1(b); (2) a 2-level enhancement

because his mother qualified as a vulnerable victim within the meaning of U.S.S.G.

§ 3A1.1(b)(1); (3) a 2-level enhancement for violation of a position of private trust,

pursuant to U.S.S.G. § 3B1.3; and (4) a 3-level decrease for his acceptance of

responsibility, under U.S.S.G. § 3E1.1(b). With an adjusted offense level of 15

and a criminal history category VI (based on 17 criminal history points resulting

from numerous prior financial crimes and the offense of falsely accusing his
4

former stepdaughter of child neglect and abuse), Ruben faced a Guidelines range

of 41-51 months’ imprisonment. There were no objections to the PSI.

At the sentencing hearing, the district court confirmed that there were no

objections to the factual basis or the calculations of the PSI and then provided

defense counsel the opportunity to argue in support of a mitigating sentence.

Counsel asserted that Ruben suffered from severe physical and psychological

problems and highlighted that he was caring for a very sick child. Counsel urged

the court to impose a sentence consisting of mandatory mental health treatment,

restitution payments, “some type of employment compensation,” and no prison

time. The district court inquired for more details about these factors and solicited

the following additional facts from Ruben and his lawyer: (1) that his son had

cancer in the eye, but did not live with Ruben who had not paid child support since

June 2003; and (2) that Ruben suffered from diabetes, high blood pressure, and

cataracts. The government argued for a high-end sentence.

The district court stated that it had reviewed the PSI, to which there were no

objections, and considered the parties’ arguments, as well as “the advisory

guidelines” and “3553, the need for punishment, the protection of the community,

the offense itself.” The court then concluded that in light of all of its

considerations, “a sentence within the advisory guidelines is an appropriate
5

sentence” and imposed a 48-month term of imprisonment, followed by 3 years of

supervised release. The court also ordered Ruben to pay $86,402 in restitution.

This appeal followed.

Ruben asserts that his sentence was unreasonable because the district court

did not adequately consult some of the factors listed in 18 U.S.C. § 3553(a). He

makes various arguments, some that he raised in the district court and others that

he raises for the first time here, in support of mitigation. We are unpersuaded by

any of them. 

Our reasonableness review is guided by the factors in 18 U.S.C. § 3553(a).

United States v. Booker, 543 U.S. 220, 261 (2005); United States v. Winingear,

422 F.3d 1241, 1245 (11th Cir. 2005). And our “[r]eview for reasonableness is

deferential.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). “[T]he

party who challenges the sentence bears the burden of establishing that the

sentence is unreasonable in the light of both th[e] record and the factors in section

3553(a).” Id. These factors include the following:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect

for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;
6

(C) to protect the public from further crimes of the defendant;

and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner;

(3) the kinds of sentences available;

. . . .

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a). Although sentencing courts must be guided by these factors,

“nothing in Booker or elsewhere requires the district court to state on the record

that it has explicitly considered each of the § 3553(a) factors or to discuss each of

the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.

2005); United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005) (stating that,

post-Booker, district courts need not conduct an accounting of every § 3553(a)

factor and expound on how each factor played a role in the sentencing decision). 

Based on our careful review, with particular attention to the sentencing

transcript and the PSI, we readily conclude that Ruben’s sentence is reasonable.

The district court explicitly stated that it had consulted § 3553(a) prior to imposing

a sentence that fell within the advisory Guidelines range. Cf. Talley, 431 F.3d at

788 (observing that “when the district court imposes a sentence within the advisory

Guidelines range, we ordinarily will expect that choice to be a reasonable one”).
7

Before announcing its sentence, the court heard Ruben’s arguments, which

pertained to “the nature and circumstances of the offense and the history and

characteristics of the defendant,” within the meaning of § 3553(a)(1), since they

concerned Ruben’s ill son, his own medical concerns, and his remorse and desire

for rehabilitation. Moreover, in imposing sentence, the district court highlighted

Ruben’s long history of economic crime and the nature of the offense and its

victim. See § 3553(a)(2) (discussing factors pertaining to need for sentence

imposed “to reflect the seriousness of the offense, to promote respect for the law,

and to provide just punishment for the offense” and “to afford adequate deterrence

to criminal conduct” and “to protect the public from further crimes of the

defendant”). Finally, the parties’ arguments and the PSI’s calculations outlined

“the kinds of sentences available,” as discussed in § 3553(a)(3). On this record,

Ruben’s sentence was reasonable. 

AFFIRMED.