PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4951

LARRY L. DEFFENBAUGH,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry Coke Morgan, Jr., Senior District Judge.

(2:10-cr-00049-HCM-TEM-1)

Argued: December 7, 2012

Decided: February 28, 2013

Before NIEMEYER, KING, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Judge King and Judge Floyd joined.

COUNSEL

ARGUED: Patrick L. Bryant, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.

Joseph Kosky, OFFICE OF THE UNITED STATES

ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF:

Michael S. Nachmanoff, Federal Public Defender, Alexan-
dria, Virginia, Keith Loren Kimball, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Alexandria, Virginia, for

Appellee.

OPINION

NIEMEYER, Circuit Judge:

In order to avoid a state probation violation hearing, Larry

Deffenbaugh designed a plan to fake his death with the assistance of his girlfriend. Under the scheme, Deffenbaugh would

rent a boat to go fishing with his unsuspecting brother and,

while his brother was preoccupied with driving the boat, he

would jump off, swim to shore, meet up with his girlfriend,

and flee the State. He expected that when his brother discovered his absence, his brother would make a distress call; that

the U.S. Coast Guard would respond and conduct an unsuccessful search; and that he would be declared dead after a

period of time.

It all happened as planned, except that Deffenbaugh was

not declared dead. He was arrested in Texas and indicted and

convicted in Virginia of conspiring with his girlfriend to

cause a false distress call to be communicated to the U.S.

Coast Guard, in violation of 18 U.S.C. § 371, and the substantive offense of causing a false distress call to be sent to the

U.S. Coast Guard, in violation of 14 U.S.C. § 88(c). The district court sentenced him to 48 months’ imprisonment on the

conspiracy count and 36 months’ imprisonment on the substantive count, to be served consecutively.

On appeal, Deffenbaugh contends that the government

failed to prove a conspiracy because his girlfriend did not

share in the object of the conspiracy to commit a federal

2 UNITED STATES v. DEFFENBAUGH
offense, as she was not aware and therefore could not intend

that the false distress call would go to the U.S. Coast Guard.

He also challenges the reasonableness of his sentence.

We affirm. Although the government did not prove that

Deffenbaugh’s girlfriend was aware and therefore intended

that the U.S. Coast Guard would respond to the false distress

call, it proved that she knew of and participated in the plan

and that, under the plan, a false distress call would be made.

With this proof and proof that the U.S. Coast Guard received

the call, the government established a conspiracy to violate 14

U.S.C. § 88(c), regardless of whether the conspirators knew

or intended that the Coast Guard would receive the call.

We also conclude that Deffenbaugh’s sentence was not

"plainly unreasonable," the standard applicable when, as here,

no Guideline exists for the offenses committed.

I

On the evening of May 10, 2009, Larry Deffenbaugh vanished from a fishing boat in the middle of the Chesapeake Bay

while on a fishing trip with his brother Wayne. The trip began

at Dockside Marina in Virginia Beach, Virginia. Deffenbaugh

was a licensed sea captain, who had piloted everything from

fishing boats to large corporate-owned yachts, eventually

earning a Master-level captain’s license through the U.S.

Coast Guard. His brother Wayne did not have the same experience and was not in good health. Wayne was legally blind

and suffered from diabetic comas.

Nonetheless, on the evening of May 10, Deffenbaugh

instructed his brother to drive the boat while Deffenbaugh

was near the fishing gear at the stern. When Wayne was looking forward, Deffenbaugh jumped off the boat and disappeared. Wayne soon discovered Deffenbaugh’s absence and,

unsure whether he was playing a joke, began yelling for him

and looking for him. After failing to find him, he believed that

UNITED STATES v. DEFFENBAUGH 3
Deffenbaugh may have drowned and placed an emergency

call to 911.

The 911 call was received by the Virginia Beach Emergency Communication and Citizens Services and forwarded

to the U.S. Coast Guard, which immediately responded. It initiated a search-and-rescue operation, dispatching small boats,

an 87-foot cutter, a U.S. Navy ship, helicopters, and aircraft.

When it found Wayne, he was disoriented and upset. The

Coast Guard continued the search for Deffenbaugh for some

15 hours before giving up on finding him. The search cost the

Coast Guard $220,940.

Unbeknownst to the Coast Guard, Deffenbaugh was not

lost at sea. In fact, by the time the Coast Guard ended its

search, Deffenbaugh was well on his way out of the State,

heading south. He had planned his disappearance with his girlfriend, Julie Giannetta, as part of a scheme he concocted to

fake his death and thereby avoid a probation violation hearing

related to an earlier Maryland conviction. In September 2008,

Deffenbaugh had entered an Alford plea in a Maryland court

to a felony theft charge, receiving a sentence of 15 years’

imprisonment, suspended with a condition of 5 years’ supervised probation. Several months later, in November 2008, the

Maryland Probation Office filed a probation violation petition, alleging that Deffenbaugh failed to present proof that he

had sold, transferred, or relinquished possession of a handgun

that had been registered to him. If found in violation of his

probation, Deffenbaugh was subject to having his suspended

sentence reinstated. The Probation Office scheduled a hearing

on the alleged violation for May 12, 2009. Deffenbaugh

staged his "death" on May 10, 2009.

After jumping off the fishing boat that his brother was driving, Deffenbaugh swam to shore and called Giannetta, who,

as had been prearranged, was waiting to pick him up. Deffenbaugh and Giannetta then drove to Texas. After receiving a

tip from a viewer of America’s Most Wanted, local police and

4 UNITED STATES v. DEFFENBAUGH
U.S. Marshals arrested Deffenbaugh some nine months after

his disappearance, on February 16, 2010, in Baytown, Texas,

where he was living under the name "Mike Meyers."

Shortly after his arrest, Deffenbaugh was indicted on one

count of causing a false distress message to be communicated

to the U.S. Coast Guard, in violation of 14 U.S.C. § 88(c).

After a four-day trial, the jury could not reach a verdict, and

the district court declared a mistrial. During the trial, however, Julie Giannetta approached the government and offered

to testify against Deffenbaugh in exchange for immunity, and

the government agreed. Having Giannetta’s cooperation, the

government filed a two-count superseding indictment charging Deffenbaugh with (1) conspiracy to violate 14 U.S.C.

§ 88(c), in violation of 18 U.S.C. § 371; and (2) the substantive offense of violating 14 U.S.C. § 88(c).

Giannetta testified as a cooperating coconspirator at the

second trial, providing the government with its most important testimony. She testified that, prior to his staged disappearance on May 10, 2009, Deffenbaugh had discussed his

legal situation with her and had stated that he felt the Maryland authorities were trying to frame him with the gun charge.

Deffenbaugh told Giannetta about his plan, as she related it,

to "go out in the boat with his brother and make his brother

believe he fell overboard or something had happened to him

and have him call 911, and then once you went missing long

enough, they would file a death certificate." Giannetta also

testified about their preparations for the scheme and actions

taken in carrying it out. For instance, she stated that Deffenbaugh transferred ownership of his automobile to her a week

before he disappeared because Deffenbaugh "was supposed to

be, you know, dead after . . . we left." As Deffenbaugh

instructed her, Giannetta also lied to Deffenbaugh’s brother

and sister-in-law in telling them that she was headed to nursing school in Florida so as to create an alibi for her absence.

With the alibi established, Giannetta then checked into a local

hotel and waited for Deffenbaugh’s call during the evening of

UNITED STATES v. DEFFENBAUGH 5
May 10. She testified that at dusk on that date, Deffenbaugh

called her, and she drove to the prearranged pickup spot

where she found Deffenbaugh and fled the area with him. The

two stayed in Baytown, Texas, until Deffenbaugh’s arrest.

Following a three-day trial, the jury convicted Deffenbaugh

on both counts.

The presentence report prepared by the Probation Office

concluded that Deffenbaugh had a criminal history Category

III, but noted that there was no Sentencing Guideline for

either 18 U.S.C. § 371 or 14 U.S.C. § 88(c). In such a circumstance, it noted, the sentencing court was entitled to use a

closely analogous guideline or, if there were none, to sentence

the defendant using the factors under 18 U.S.C. § 3553(a).

At sentencing, the government argued that the fraud Guideline, U.S.S.G. § 2B1.1, was closely analogous and urged the

district court to adopt it. Using that Guideline, the government

calculated that the recommended sentencing range would be

78 to 97 months’ imprisonment, which reflected a number of

relevant sentencing enhancements.1 Deffenbaugh argued

against application of the fraud Guideline and urged the court

to sentence him to time served.

The district court concluded that it would not apply the

fraud Guideline as it was not sufficiently analogous to use,

but it did allow that it was "looking to" that Guideline and

1The calculation began with the base offense level of 6, as provided in

the fraud Guideline § 2B1.1(a)(2), and enhanced by 12 levels based on the

amount of loss to the Coast Guard of over $200,000 under

§ 2B1.1(b)(1)(G), by an additional 2 levels for risk of death or serious

bodily injury under § 2B1.1(b)(14)(A), by 2 levels for being a leader or

organizer of criminal activity under § 3B1.1(c), by 2 levels for using a

special skill under § 3B1.3, and by 2 levels for obstruction of justice under

§ 3C1.1, thus arriving at a level 26. Coupling that level with a criminal

history Category III resulted in the recommended sentencing range of 78-

97 months’ imprisonment. 

6 UNITED STATES v. DEFFENBAUGH
would take it "into consideration" when applying the statutory

sentencing factors under § 3553(a). After describing an extensive list of aggravating circumstances and determining that a

sentence of 84 months’ imprisonment was appropriate under

§ 3553(a), the court sentenced Deffenbaugh to 48 months’

imprisonment on Count I and 36 months’ imprisonment on

Count II, to be served consecutively.

This appeal followed.

II

Deffenbaugh contends that the evidence failed to show that

he and his girlfriend, Julie Giannetta, agreed to pursue "the

same criminal objective," as required to prove a conspiracy.

"Here, at most, Ms. Giannetta agreed to help Mr. Deffenbaugh avoid his Maryland probation violation hearing. But

this is not an offense against the United States," as required

by 18 U.S.C. § 371.2 He maintains that Giannetta "had no

knowledge of the [conspiracy’s federally unlawful] goal"—

i.e., to cause to be communicated a false distress message to

the United States Coast Guard—"much less an intent to commit it." And without knowledge of the common goal and

intent to commit a federal crime, she could not have been a

conspirator, as necessary for Deffenbaugh’s conviction under

§ 371. Stated otherwise, Deffenbaugh argues that the members of a § 371 conspiracy must have specific knowledge and

intent to violate federal law.

The indictment charged that Deffenbaugh and Giannetta 

conspired and agreed together . . . [t]o knowingly

and willfully communicate and cause to be communicated a false distress message to the United States

2Section 371 makes it a crime "[i]f two or more persons conspire either

to commit any offense against the United States, or to defraud the United

States." (Emphasis added). 

UNITED STATES v. DEFFENBAUGH 7
Coast Guard (Coast Guard) and cause the Coast

Guard to attempt to save lives and property when no

help was needed, in violation of Title 14, United

States Code, Section 88(c).

At trial, the government proved that Deffenbaugh and Giannetta conspired to cause a false distress call to be made for the

purpose of faking Deffenbaugh’s death and thus avoiding a

state probation violation hearing. While the government

established that Deffenbaugh intended, as part of the plan,

that the Coast Guard receive the call, it did not establish that

Giannetta intended or even knew that the Coast Guard would

receive the call and become involved. As she testified about

her knowledge of the plan:

Q: Can you tell us what [Deffenbaugh] said about

disappearing?

A: Yeah. He basically said he was going to go out

in the boat with his brother and make his brother

believe he fell overboard or something had happened

to him and have him call 911, and then once you

went missing long enough, they would file a death

certificate. . . . He wanted me to go to the hotel, that

they wouldn’t suspect anything was up, was going

on. And then he had me pick him up after he was on

the boat with his brother, and then he wanted us to

leave town together.

Deffenbaugh argues that Giannetta’s knowledge and intent

were so limited in respect to the essential federal element of

the conspiracy that she could not knowingly participate in a

conspiracy to commit a federal offense, as required by § 371.

In other words, he argues that while he may have had a plan

to commit an offense against the United States, Giannetta did

not participate in the same plan. 

Despite some logic in this argument, we conclude that it

fails as a matter of law.

8 UNITED STATES v. DEFFENBAUGH
We begin by noting that § 371 criminalizes an agreement

to commit "any offense against the United States." 18 U.S.C.

§ 371. And in proving a violation of § 371, the government

must demonstrate "at least the degree of criminal intent necessary for the [underlying] substantive offense itself." United

States v. Feola, 420 U.S. 671, 686 (1975). But the intent

needed to violate § 371 does not require the government to

show that the conspirators knew that their conduct would violate federal law, unless the underlying crime included such

specific intent. Id. Thus, where the object crime does not

require that its federal nature be known, the conspiracy statute

likewise does not require that knowledge to be demonstrated.

Id.

The critical language of 14 U.S.C. § 88(c), the object crime

in this case, provides that a person commits a federal crime

if he or she "knowingly and willfully communicates a false

distress message to the Coast Guard or causes the Coast

Guard to attempt to save lives and property when no help is

needed."3 This language clearly requires that a perpetrator of

a § 88(c) crime specifically intend to make a false distress call

or to cause one to be made. And there can be no question that

in this case Deffenbaugh and Giannetta knowingly and willfully conspired to cause a false distress call to be made. The

question that Deffenbaugh raises is whether the perpetrator

must also have knowledge and intent that the recipient of the

false distress call be the U.S. Coast Guard. The resolution of

this issue is, we conclude, informed by the Supreme Court’s

3Section 88(c) of Title 14 provides: 

An individual who knowingly and willfully communicates a false

distress message to the Coast Guard or causes the Coast Guard

to attempt to save lives and property when no help is needed is—

(1) guilty of a class D felony; 

(2) subject to a civil penalty of not more than $5,000; and 

(3) liable for all costs the Coast Guard incurs as a result of

the individual’s action. 

UNITED STATES v. DEFFENBAUGH 9
decision in United States v. Yermian, 468 U.S. 63 (1984),

which held that the federal nature of a crime need not be in

the mind of the perpetrator.

In Yermian, the defendant was convicted of making a false

statement to a federal agency, in violation of 18 U.S.C. § 1001.4

The defendant appealed his conviction, claiming that even

though he did indeed make false statements, he "had no actual

knowledge that his false statements would be transmitted to

a federal agency" and therefore did not violate § 1001. Yermian, 468 U.S. at 66. The Supreme Court rejected this argument, explaining that although the statute required that the

defendant "knowingly and willfully" make the false statement

to a federal agency, the term "knowingly and willingly" modified only the making of the false statement and not the "jurisdictional requirement" that it be to a federal agency. Id. at 68-

69. It explained, "[T]he existence of the fact that confers federal jurisdiction need not be one in the mind of the actor at the

time he perpetrates the act made criminal by the federal statute." Id. (emphasis added) (quoting Feola, 420 U.S. at 676-77

n.9); see also United States v. OceanPro Indus., Ltd., 674

F.3d 323, 328-29 (4th Cir. 2012).

Similarly, Feola held that to violate 18 U.S.C. § 111 (criminalizing the assault of federal officers in the line of duty), the

perpetrator need not know that his victim is in fact a federal

officer. The Court explained that the federal assault statute

"cannot be construed as embodying an unexpressed requirement that an assailant be aware that his victim is a federal

officer." Feola, 420 U.S. at 684. "All the statute requires is an

intent to assault, not an intent to assault a federal officer." Id.

The analysis of these cases is applicable here. Just as

4At the time, the relevant language of 18 U.S.C. § 1001 provided:

"Whoever, in any matter within the jurisdiction of any department or

agency of the United States knowingly and willfully . . . makes any false

. . . statements . . . shall be fined. . . ." 

10 UNITED STATES v. DEFFENBAUGH
§ 1001 punishes anyone who "knowingly and willfully"

makes false statements to a federal agency, § 88(c) punishes

anyone who "knowingly and willfully" communicates a false

distress message to the Coast Guard. And just as the Court in

Yermian held that knowledge that a federal agency was

involved need not be proved, so too here knowledge that the

U.S. Coast Guard was involved need not be proved. The

"actus reus"—i.e., the prohibited conduct of causing a false

distress call to be made—must be carried out "knowingly and

willfully," but the jurisdictional fact that makes the prohibited

conduct a federal crime need not be known, although it must,

of course, be proved. See United States v. White, 670 F.3d

498, 508 (4th Cir. 2012).

In this case, Deffenbaugh and Giannetta knowingly and

willfully entered into a conspiracy with the intent to cause a

false distress call to be made. Indeed both intended and

expected that the call would not only be made but also that it

would be responded to; that the resulting search would be

unsuccessful; and that Deffenbaugh would be declared dead.

The fact that one or both of the participants did not know that

the false distress call would be received by the U.S. Coast

Guard does not bear on the unlawfulness of their conduct

under 18 U.S.C. § 371 and 14 U.S.C. § 88(c). Just as the lack

of knowledge and intent that a false statement is made to a

federal agency or that the victim of an assault is a federal officer is no bar to a prosecution for the federal offense, so too

the lack of knowledge in this case that the responder to the

false distress call will be a federal agency is no bar to a prosecution for a federal conspiracy offense. As the Supreme Court

has explained, the fact that Giannetta was "unaware which

body of law they intend[ed] to violate" and that a federal

agency would be called does not make her participation in the

conspiracy "any less blameworthy," nor does it "constitute[ ]

less of a danger to society." Feola, 420 U.S. at 694.

Accordingly, we reject Deffenbaugh’s contention that the

evidence was insufficient to convict him of the conspiracy

charged in the indictment.

UNITED STATES v. DEFFENBAUGH 11
III

Deffenbaugh also challenges his 84-month sentence, consisting of a 48-month sentence on Count I and a consecutive

36-month sentence on Count II. He contends (1) that the district court erred in applying the Sentencing Guideline for

fraud and theft, U.S.S.G. § 2B1.1, to his false distress call

conviction; (2) that the court’s inappropriate application of the

§ 3553(a) factors rendered his sentence unreasonable; and (3)

that the court failed adequately to explain its decision to

impose consecutive sentences. We address these in order.

A

As Deffenbaugh recognizes, neither 18 U.S.C. § 371 nor 14

U.S.C. § 88(c) has an applicable Sentencing Guideline. In the

absence of a Guideline, the court applies "the most analogous

offense guideline," and if no Guideline is sufficiently analogous, "the provisions of 18 U.S.C. § 3553 shall control."

U.S.S.G. § 2X5.1. We review a sentence imposed for an

offense for which there is no Guideline for whether it is

"plainly unreasonable." 18 U.S.C. § 3742(a)(4).

The government urged the district court to apply the fraud

and theft Guideline, U.S.S.G. § 2B1.1, arguing that a false

distress call is an analogous crime. The government noted that

if § 2B1.1 were applied, the recommended sentencing level

would be 78 to 97 months’ imprisonment.

Deffenbaugh objected to the use of that Guideline, principally because it, with the applicable enhancements, would

result in a sentence he considered too severe. He argued that

the Guideline was not "a close enough fit to serve as an analogous guideline."

In sentencing Deffenbaugh, the district court did not adopt

the fraud Guideline, choosing instead to sentence Deffenbaugh using the factors in 18 U.S.C. § 3553(a). But the court

12 UNITED STATES v. DEFFENBAUGH
did find the fraud Guideline sufficiently useful to "consider"

it and have it "influence" the court’s ultimate decision. The

court said: 

The government has cited an analogous section of

the guidelines, and to some degree there is some

analogy that would apply between the fraud and

what the defendant did here. Certainly his conduct

could be described as fraudulent, among other

things.

It appears that the court sought to achieve a sentence in a

range informed by the fraud Guideline and the enhancements

relevant to it, especially since the court found that the factual

bases for the enhancements existed in this case. But it made

clear that it was not adopting the Guideline but was only

"looking to it" and allowing itself to be "influenced" by it

when applying the § 3553(a) factors.

The court then proceeded to find facts as to the enhancements it thought meaningful to its § 3553(a) analysis. It found

(1) that Deffenbaugh was "the leader of the conspiracy and

pulled his ex-girlfriend into the scheme," inducing her to give

false information and causing her to suffer as a result; (2) that

he used his "U.S. Navy experience and his maritime experience" to conclude that his actions "would cause the U.S.

Coast Guard, and others, to perform an extensive search"; (3)

that he placed the searching parties’ lives "needlessly in

harm’s way" and similarly endangered his brother "who had

little prior boating experience and who was significantly

impaired due to his illnesses, by abandoning him on the boat

in the Chesapeake Bay at night"; (4) that he persisted in "efforts to obstruct justice" by evading punishment and using

"the false name of ‘Mike Meyers’ to elude the government’s

attempts to detain him"; and (5) that during the course of two

trials, he "constantly perjured himself." 

We conclude that the district court’s approach was not

plainly unreasonable. At bottom, all of the matters discussed

UNITED STATES v. DEFFENBAUGH 13
by the court related directly to its determination to impose a

sentence "sufficient, but not greater than necessary, to comply

with the purposes [of sentencing]." See 18 U.S.C. § 3553(a).

B

Deffenbaugh also challenges his sentence as unreasonable

under § 3553(a). He asserts that his "circumstances plainly

call for a shorter sentence," emphasizing that his poor health

and the length of his sentence would effectively amount to a

life sentence. But he made these same arguments to the district court, and the court, in exercising its discretion, found

them outweighed, pointing to the numerous other factors that

called for a longer sentence.

Deffenbaugh also argues that his 84-month sentence is longer than the sentences given in other cases involving false distress calls. But again, the district court was aware of those

cases and did not find them persuasive. The court explained

that Deffenbaugh’s circumstances were distinguishable

because "there are two charges [against him]," the conspiracy

and the substantive offense. The court also pointed out that

the enhancing factors that it applied to Deffenbaugh may not

have existed in the other cases. The court was especially troubled by this case because Deffenbaugh "placed his brother’s

life in danger."

In these circumstances, we cannot conclude that the sentence given to Deffenbaugh was "plainly unreasonable."

C

Finally, Deffenbaugh argues that the court erred in failing

to explain its reasons for imposing consecutive sentences.

Section 3584 of Title 18 governs the imposition of multiple

sentences and provides that if multiple terms of imprisonment

are imposed at the same time, the default rule is to have those

14 UNITED STATES v. DEFFENBAUGH
sentences "run concurrently unless the court orders or the statute mandates." 18 U.S.C. § 3584(a). On the other hand, if the

terms are imposed at different times, the default rule is to have

those sentences "run consecutively unless the court orders that

the terms are to run concurrently." Id. In making the concurrent versus consecutive election, the court must consider the

factors in § 3553(a). See id. § 3584(b).

In this case, the court spoke at length as to why it was giving the sentence imposed, announcing that it sought to

achieve the sentencing level of 84-months’ imprisonment, a

level it found appropriate when considering the § 3553(a) factors. It then selected sentences under each of the two convictions that, when run consecutively, would achieve the

appropriate level.

We find no error in this approach. The court appropriately

reached the 84-month sentencing level through a careful consideration of the § 3553(a) factors. Recognizing that the 84-

month level would "exceed the total statutory limit for either

of the offenses in this case," it entered sentences on each

count in a manner that added up to the 84-month sentence.

Structuring sentences by running them concurrently or consecutively is an appropriate means to reach a desired sentence.

Cf. U.S.S.G. § 5G1.3, application note 3(D) (explaining that

"the court may exercise its discretion . . . to fashion a sentence

of appropriate length and structure it to run in any appropriate

manner to achieve a reasonable punishment for the instant

offense").

We conclude that Deffenbaugh received the benefit of a

reasoned and individualized assessment as to the appropriate

level of punishment for his offenses and that the imposition

of consecutive sentences was not an unreasonable method to

achieve the sentencing goals determined by the court under

§ 3553(a).

The judgment of the district court is accordingly

AFFIRMED.

UNITED STATES v. DEFFENBAUGH 15