NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0544n.06 No. 09-3272 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. FLAVI O G. VARON E, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COU RT FOR THE NORTHERN DI STRI CT OF OH I O

OP INION

Before: BOGG S, SUHRHE INRICH, and S TRANCH, Circ uit Jud ges. JANE B. STRANCH, Circuit Judge. In 2006, Flavio Var one, an investment profe ssional, beg an taking money from s o m e o f h i s clients’ investment portfolios and using it for his persona l expenses. Following an investigation by the FB I , Mr. Var one was convicted of interst at e transportation of proper

ty taken by fra

ud and attempted tax evasion. He was sentenc ed to 57 months of inca rce ration and now

appea ls the substantive rea sonablene ss of that sentenc e. We af firm. I. Background A. F actual Background Mr. Var one was an investment executive, selling insur a n c e a nd investing retire ment and trust funds for his c lients. He beg an as a n investor with J ohn Hanc ock and later moved his acc ounts to U.S

. Allianz Securities (“A llianz”). Mr. Var one had develope d relationships with a number o f elder ly clients, many

of whom trusted him to a shocking degree with their financ es. In NovemberNo. 09-3272 , United States v. Flavio Varone

2006, Allianz rec eived a complaint from one of Mr. Varone’s clients, Wil liam Cvetko, about M r. Var on e ’ s h a

n d li n g of his money . An Allianz investigator beg an looking into Mr. Cvetko’s complaint that his chec k to Allianz had been cashe d but the funds wer e never deposited in t o o n e o f his investment acc ounts. That same month Mr. Var one resig ned his employ ment with Allianz. Allianz eventua lly repor

ted Cvetko’s complaint to the local police depar tment, who ref

err ed it to the FB I in April 2007. This beg an an investigation into Mr. Var one’s dealing s with a number of other elder ly clients. During the course of this investigation, the FB I interviewe d a number of elder ly clients who claimed they g ave Mr. Var one vary ing sums of money but that the money was never deposited into their investment ac counts with J ohn Hanc ock or A llianz. For example, Marg are t Wit z (Sister Annunciata ) claimed that she entrusted her incapa citated sister’s life s av i n gs t o Mr. Var one so that he could distribute it for her medical car e. Her sister’s funds ran out quickly , even though her medical bills rema ined unpaid. She alleg ed that Mr. Var one forg ed her signature on chec ks drawn on her s i s t er’ s bank acc ount (over which she had power of attorney ) and took that money for his person al u s e. FBI investigators calc ulated that Mr. Var one took approximately $100,000 from Ms. Wit z and her sister, which he used to pay off the balanc e on

sever al vehicles he purchased, to make delinquent tax pay ments, and to pay h i s g irlfriend’ s cre dit

car d debt. Mr. Var one filed H arr iet Trojan’ s tax es for her e very y ear , and she paid for his ser vices by chec k. FB I investigators alleg ed that Mr. Var one altere d the amount of one of the chec ks, taking a total of $47,500 from Ms. Troja n, which he use d to pay

off sever al ca

rs and make investments for his parents. -2-No. 09-3272 , United States v. Flavio Varone

Mr. Var one manag ed the financ ial aff airs of J osephine L oparo for approximately 20 y ear s. She g ave Mr. Var one $73,000 by chec k, addre ssed to him, to invest for the benef it of her daug hter, Virg inia L oparo. I nstead, Mr. Var one ca shed the c heck in his per sonal acc ount and used it to pay off part of his line of cre dit. Mr. Var one also deposited chec ks drawn on Virg inia L oparo’ s acc ount in his persona l acc ount in the amount of $54,000 and used those funds to pay off additional vehicles, pay delinquent taxes, and make me dical pay ments for Ms. Witz ’s sister. Mr. Var one convinc ed Ar dell Slapar to open a line of credit at her bank for Mr. Var one to

use for his persona l financ es. I n exchang e, he ag ree d to repa y the money he borrowe d and take Ms. Slapar to the g roce ry store and on other err ands. That line of cre dit is curr ently i n d ef au l t in the amount of appr ox imately $62,000. B. P roce dural B ackground At t he end of trial, the jury found Mr. Var one g uilty of three counts of inte rs t at e t ra n sportation of proper

ty taken by fra

ud in violation of 18 U.S.C. § 2314 and four counts o f attempted tax evasion in violation of 26 U.S.C. § 7201. At the sentenc ing hear ing, the district court calc ulated the g uideline advisory rang e for Mr. Va ro n e to be 57 to 71 months and sentenc ed Mr. Var one to 57 months’ incar cer ation on eac h count to be serve d concur rently , followed by 3 y ear s of supervised r elea se. Mr. Va rone f iled this timely appea l arguing that the sentenc e imposed on him is substantively unrea sonable beca use it fails to take into consideration cer tain positive fac tors and place s unwar

rante d weig ht on neg ative fac tors that wer e alre ady acc ounted for in his g uidelines calc ulation.

-3-No. 09-3272 , United States v. Flavio Varone

II. Analysis A. Stand ard of Review We revie w a district court' s sent en ci n g d et erminations for an abuse of discretion. United States v. Rosenbaum , 585 F.3d 259, 266 ( 6th Cir. 2009) (citing Gall v. United States , 552 U.S. 38 (2007))

. The district court commits an abuse of discretion if t h e s entence imposed is either proce durally

or substantively

unrea sonable. Id

. B. Sub stantive Re asonab leness A sentenc ing c ourt commits substantive error if the sentenc e “is selec ted ar bitrarily , if it is based on impermis s i b l e fa ct ors, i f i t fails t o consider a relevant sentencing fac tor, or i f i t g ives an

unrea sonable amount of weig ht to any pertinent fac tor.” Id. at 267 (citing United States v. Conatser , 514 F.3d 508, 520 (6th Cir. 2008)). Appellate revie w for substantive err or is a revie w of the totality of the circ umstances. Gall , 552 U.S. at 51. I mportantl y , i n t h is circ uit, we apply a rebuttable presumption of rea sonablene ss to a sentenc e falling within the proper ly calc ulated g uidelines rang e. United States v. W

alls , 546 F.3d 728, 736 (6th Cir. 2008) (citing United States v. Vonner , 516 F.3d 382, 389 (6th Cir. 2008) (en banc) ). “In g ener al, we must g ive due defe renc e to the district court’s conclusion that the sente nce imposed is wa rra nted by the § 3553(a ) fa ctors.” Id. On appea l, Mr

. Var one argues that the district court failed to balanc e the § 3553(a) fac tors, g iving an unrea sonable amount of weig ht to the fac tors supporting a sever e sentenc e while ignor ing Mr. Var one’s positive attributes. Under § 3553(a) , the sentenc ing cour t m u st consider, inter alia , “the nature and circ umstances of

the offe nse and the history and char acte ristics of the def endant” and the ne ed for -4-No. 09-3272 , United States v. Flavio Varone

the sentenc e in terms of punishment, deter renc e and public protec tion. 18 U.S.C. § 3553(a) (1), (2). In our view, the district c ourt conducte d a thoroug h analy sis of the application of all the § 3553(a) fact o rs t o the fac ts of Mr. Var one’s case , including a balanc ing of his relatively positive persona l history and cha rac teristics with the nature and cir cumstance s of his crimes. S p ec i fi ca l ly , to Mr. Var one’s cre dit, the district court noted that he had no prior criminal history , that he had w orked in the financ ial industry for approximately 20 y ear s with no indication of any pri o r i l l ega lity or impropriety , and that he sometimes did favor s and littl e chore s for his elder ly clients. The court further cre dited Mr. Var one for his past milit ary service

. As to the nature and circ umstances of the offe nse, the district judge char acte rized Mr. Var one’s crime s a s “ im p a c tf ul” and “ser ious,” viewing the inflow and outflow of his victims’ money from his persona l check i ng

acc ount, in light of their vulner able state s, as “a ppalling.” At sentenc ing, Mr. Var one argued that, beca use the vulnera

bility of the victims and his abuse of a position of trust wer e fac tors used to adjust upwar dly his total offe nse level by two levels eac h, the court could not also consider those fac tors when deter mining whether or not to g rant a varia nce. Howeve r, being car eful not to double-c ount these two fac tors ag ainst Mr. Var one, the district court chose a sentenc e at the low end of the advisory rang e, stating: “I think putting y ou at the low end of the g uideline rang e on these fac ts is war rante d only beca

use some of the fac tors that I ’ve discussed

ar e b u i lt into the g uideline rang e.” Thus, Mr. Var one has failed to show that the court abused its discretion in consider ation of these two f actor s or the natur e of the offe nse. In addition to this balanc ing, a substantiv el y reasonable sentenc e must be in leng th not “g reater than nece ssary to achie ve the sentenc ing goa ls set forth in 18 U.S.C. § 3 5 5 3 (a ). ” Uni ted -5-No. 09-3272 , United States v. Flavio Varone

States v. Trist an-Madrigal , 601 F.3d 629, 632-33 (6th Cir. 2010). The district court considere d the

nece ssity of the sentenc e in light of the g oals of the g uidelines in deter mining Mr. Var one’s sentenc e. “I think this sentenc e would say to y ou and to anyone else that, if y ou thought about it, ref lected on it, that knowing wha

t I know now, if I

wer e g oing to g et this kind of sentence , Iwouldn’t do that. I think it protec ts the public from further crimes by y ou, and there wer e a num b er o f p eople who

wer e victims here

. And I think it meets rea lly the objectives of the sentenc ing g uidelines and the st at u t e . . . . ” Thus, the di strict court did not fail t o consider the nece ssity of t he sentence and the g oals of the guidelines. III. Conclusion Be cause the district court’s analy sis of all the rec ord fac ts under the § 3553(a) framework was thoroug h and balanced, the sentenc e i m posed was not substantively unrea sonable. We AF F IRM the district court’s se ntencingdecision.

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