NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 09

- 1123

_____________ UNITED STATES OF AMERICA

v. MERLINHG ALCANTARA AKA Melvin Alcantara Merlinhg Alacantara,

Appellant

_____________ __ APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY (D.C. C rim . Action No. 08

- 198 ) District Judge: Honorable Jose L. Linares

_______________ Submitted Under Third Circuit LAR 34.1(a)

June 2 3 , 201 1

_______________ Before: CHA GARES , JORDAN , and GREENAWAY, JR., Circuit Judges

(Opi nion Filed : July 12, 2011 )

_______________ OPINION

________________ GREENAWAY, JR. , Circuit Judge2

Appellant Merlin h g Alcantara (“ Alcantara ”) appeals the District Court‟s December 15, 2008 judgment, sentencing him to a term of 60 months of imprisonment

. Alcanta ra now files this timely appeal

. For the following reasons, we will affirm the Dist rict Court ‟s Judgment

. I. BACKGROUND We write primarily for the benefit of the parties and shall recount o nly the essential facts. Alcantara, his brother, Luis, Kenneth Robinson (“Robinson”) and Alex Torres (“Torres”) engaged in a check theft operation. Alcantara ran the domestic portion
of the operation after his brother , Luis , was indicted and fled to the Dominican Republic. Specifically, Robinson and Torres , who we re both airport baggage handlers, stole U.S. Treasury checks from mail b eing shipped as cargo on airplanes from the Newark Liberty International Airport. On several occasions, Robinson removed entire mail bins from air planes in order to retrieve U.S. Treasury checks . The remaining mail from the se bins was discarded. At other times, instead of removing the mail bins , Robinson would just rifle through the mail on the airplanes and remove the U. S. Treasury checks. Torres also removed U.S. Treasury checks from the mail bins

. All of the stolen checks were given to Alcantara in exchange for cash payments

. Once obtained, either the checks themselves or the information on the checks (date,
amount, payee, payor) were sent to Luis in the Dominican Republic. Luis then clone d3

select checks, and creat e d counterfeit checks. 1 T he counterfeit checks were then sent back to Alcantara, d eposit ed in fraudulent bank accounts , and dis tributed to other co consp irators

- - Juan Castillo, Elaine Acevedo, and John Doe, who deposit ed the checks at various banks in New Jersey, New York, Ohio , and Florida, withdre w the funds, and
return ed money to the remaining co

- conspirators. In May 2005, a bank official became susp icious when Aceve do, using an alias, deposited a U.S. Treasury check exceeding $ 1 00,000 into her personal account. A government investigation ensued. 2 As a result of the investigation, Torres was approached by the government and agreed to assist the auth orities. Shortly thereafter, Alcantara called Torres in order to initiate another check theft operation . This contact led
to Alcantara‟s arrest and indictment.
I n a 14

- count indictment , Alcantara was charged with one count of conspiracy to
utter counte rfeit obligations and to steal mail, i n violation of 18 U.S.C. § 371; and thirteen counts of passing counterfeit obligations, in violation of 18 U.S.C. § 472 and § 2. Pursuant to a plea agreement, Alcantara pled guilty on June 30, 2008, to Count One of th e indictment

– the conspiracy charge. He admitted that from 2003 to 2007 , he paid for

1 Cloning is the counterfeiting of checks.

2 The investigation uncovered a conspirac y in which 26 counterfeit stolen checks in excess of $1.658 million were deposited in fraudulent bank accounts . Alcantara‟s fingerprints were found on at least ten of those checks. Acevedo deposited $508,166.25, Castillo deposited $1,160,865.94, and John Doe deposited $116,436.23.4

stolen Treasury checks, passed them to his brother, received counterfeit checks from his brother , and passed those checks to the other co

- conspirators.

II. JURISDICTION AND STANDARD OF REVIEW The District Court had subject matter jurisdiction, pursuant to 18 U.S.C. § § 3231

. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a ). A district court‟s sentencing procedure is reviewed for abuse of discretion. G all v. United States , 552 U.S. 38, 51

- 52 (2007). On abuse of discretion review, the court of appeals gives due deference to a district court‟s sentencing decision. Id. at 51. District courts have discretion when sentencing and appellate review is lim ited to determining whether the sentence imposed is reasonable. Id. Our appellate review proceeds in two stages. It begins by ensuring that the district court committed no significant procedural error, such as (1) failing to calculate (or improperly cal culating) the U.S. Sentencing Guidelines range; (2) treating the Guidelines as mandatory; (3) failing to consider the 18 U.S.C. § 3553(a) factors; or (4) selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sen tence and to include an explanation for any deviation from the guidelines range. United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) (en banc). If the d istrict court‟ s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided. Id. at 568. Then, at stage two, we consider a sentence‟s substantive reasonableness. Our substantive review requires us not to focus on one or two factors, but on the totality of the circumstances.5

At both stages of our review, the party challenging the sentence has the burden of demonstrating unreasonableness. Id. at 567. (Internal quotations marks, brackets, and citations omitted)

. A district c ourt‟s factual findings related to loss and a defendant‟s role
in the offense are reviewed for clear error. United States v. Brennan , 3 26 F.3d 176, 194 (3d Cir. 2003); United States v. Hunter , 52 F.3d 489, 492 (3d Cir. 1995).
I II . ANALYSIS Alcantara argues that his sentence of 60 months was procedurally erroneous and substantively unreasonable. Alcantara‟s arguments related to procedural error include: (1) that he received an excessive sentence because the District Court‟s application of the number of victims enhancement, pursuant to U.S.S.G. § 2B1.1(b)(2), was erroneous, and the holding in United States v. Kennedy , 554 F.3d 415, 418 (3d Cir. 2009), should be retroactivel y applied to his case; (2) the District Court grossly misconstrued hi s role in the c onspiracy ; and (3) the District Court failed to properly consider the 18 U.S.C. § 3553(a) factors, including the nature and circumstances of the offense. Alcantara‟s
substantive unreasonable ness claim is t hat the sentence is unreasonable an d is an abuse of discretion. After the Supreme Court‟s decision in United States v. Booker , 543 U.S. 220 (2005), se ntencing Guidelines were no longer deemed mandatory . I nstead , they were deemed advisory. Since Booker , d istrict courts are required to fol low a three

- step process in determining the appropriate sentence in this advisory scheme. “C ourts must continue to calculate a defendant's Guidelines sentence precisely as they would have6

before Booker

. In doing so, they must formally rule[e] on the moti ons of both parties and stat[e] on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and tak[e] into account [our] Circuit's pre

- Booker case law, which continues to have advisory force. Finally, th ey are required to exercise [their] discretion by considering the relevant § 3553(a) factors, in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines.”
United States v. Gunter , 462 F.3d 237, 247 ( 3d Cir. 2006) (internal quotation marks and citations omitted). The sentencing judges are statutorily required to state their reasons for imposing a sentence, although a comprehensive, detailed opinion is not required. Rita v. United States , 551 U.S. 338 , 356 (2007). The judge must provide an explanation that is sufficient to satisfy the appellate court that the district court considered the parties‟ arguments and had a reasoned basis for exercising its own decision

- making authority. Id. Procedural Erro r The Probation Office prepared a P re - S entenc e Investigation R eport (PSR), in which it claimed that Alcantara was responsible for $1, 772,293.57 in intended loss, based on the total face value of the counterfeit checks deposited into various bank accounts

. For that reason , a 16

- level enhancement, pursuant to § 2B1.1(b)(1)( I ) , wa s applicable

. The PSR then calculated that the offense involved 250 or more victims and a 6

- level enhancement, pursuant to § 2B1.1(b)(2)(C) , was applicable

. This 22

- level enhanceme nt resulted in an offense level of 32, a criminal history c ategory of I and an advisory Guidelines range of 121

- 151 months of imprisonment

. Although t he District Court7

adopted all of the PSR‟s recommendations , t he statutory maximum term of imprisonment

on a § 371 violation i s 60 months . P ursuant to U.S.S.G. § 5G1.1, despite the Guidelines calculation, Alcantara‟s senten ce could not exceed 60 months

. Alcantara filed his objections to the PSR‟s loss calculation and role enhancement. In addition, he request ed a downward variance, based on his minor role in the operation, his family obligations , and his wife‟s illness. The government filed a brief concurr ing with the PSR‟s calculation, and requested that Alcantara be sentenced to the maximum term of imprison ment of 60 months. Alcantara contends , first, that there is no evidence showing that any individual citizen suffered pecuniary loss from his conduct ; and second, that the government failed to prove that the citizens from whom the checks were stolen and co unterfeited knew that they had suffered any pecuniary harm. We disagree. The District Court held a sentencing hearing, at which time i t heard the parties‟ arguments and the testimony of Special Agent Richard Koles

. 3 Alcantara argued that the checks Aceve do illegally deposited should not be considered because he had no contact with Acevedo. 4 The District Court stated that, even without the Acevedo money, the

3 Special Agent Koles testified that Alcantara‟s fingerprints were found on checks with a face value totaling between $500,000 and $600,000. Based on that testimony, the District Court explained that, even giving Alcantara the benefit of the doubt, the total money would be more than $400,000 and would trigger a 14

- level enhancement. A 14

- level enhancement would still result in a Sentencing Guidelines range above the statutory maximum 60 months term of imprisonment.

4 I n the r ecord, both Alcantara and Acevedo admitted that they had a n illicit business relationship.8

total was more than a million dollars, thus triggering the 16

- level enhancement. As such, the 16

- level enhancement remained applicable. Alcantara next contends that the District Court committed error when it held that there were more than 250 victims. Alcantara argues that the only true victim should have been the U.S. Government, since he stole and counterfeited U.S. Treasury checks. We disagree. Commentary 4(C) of §2B1.1 states, in pertinent part , In a case in which undelivered United States mail was taken, or the taking of such item was an object of the offense, or in a case in which the stole n property received, transported, transferred, transmitted, or possessed was undelivered United States mail, “victim” means (I) any victim as defined in Application Note 1; or (II) any person who was the intended recipient, or addressee, of the undelivered United States mail.
U.S.S.G. §2B1.1 Commentary 4(C) Alcantara and his co

- defendants stole mail bins from the airport. After U.S. Treasury checks were removed, the remaining mail was discarded. According to information contained in the PSR, thousands of pieces of undelivered mail were stolen. 5 Therefore, those individuals , who did not receive their mail , are considered victims. 6

5 Because the offense involved thousands of pieces of undelivered U.S. mail, and because a “victim” is described under Application Note 4(C)(i)(II) as “any person w ho was the intended recipient, or addressees, of the undelivered United States mail , ” the District Court found that the offense involved more than 250 persons, and was subject to the 6

- level enhancement. ( See Appellant‟s Br. at 11, Appellee‟s Br. at 8.)

6 T here is no evidence in the record that the actual checks , stolen and subsequently used in the counterfeiting operation , were ever returned to their owners.9

Alcantara a ttempts to bolster his „ one victim ‟ argument by relying on K ennedy

. In Kennedy , the defendant was charged with mail fraud, and with making and using false writings or documents

. Kennedy wrote checks from the accounts of 34 beneficiaries of a nonprofit corporation , which assisted elderly clients ; h owever, t he company that employed Kennedy reimbursed the beneficia ries‟ accounts after the malfeasance

. As a result, Kennedy claimed that the only victi ms were the two unreimbursed victims, and not 10 or more as calculated in the PSR

. This Court r uled that the District C ourt committed error by holding that the 34 accou nt holders were victims, because almost all were reimbursed and thu s did not suffer pecuniary harm. Here, there are two categories of victims , neither of which were reimbursed . First, individuals who failed to receive mail are one category of victim

. There were thousands of pieces of mail stolen by Alcantara and his co

- conspirators. None of the mail was returned. Most of it was destroyed. Second, the other category is comprised of the designated recipients of the stolen checks , who never receive d th eir checks. Alcantara

c annot, on these facts, support the notion that only one victim exists . The District Court‟s finding of more than 250 victims was not error

. Alcantara next argues that the District Court erred when it de termined his role in the c o nspi r acy . In the PSR, Alcantara was described as a manager in a criminal activity involving five or more participants, which justified a 3

- level enhancement, pursuant to §10

3B1.1(b). 7 The government contends that although Alcantara was not the organizer o r leader , his brother Luis was

. Alcantara s erved as the middle man, in charge of the domestic elements of the scheme. T he District Court discussed on the record the factors that establish unequivocally that Alcantara was a manager in the criminal enterpr i se . This determination was not clearly erroneous. The District Court did not err in concluding that the 3

- level enhancement was appropriate given Alcantara‟s role in the conspiracy. Finally , Alcantara argue s that the District Court did not properly cons ider the 18 U.S.C. § 3553(a) factors, particularly the nature and circumstances of the offense.
S entencing courts must give meaningful consideration to all of the factors in 18 U.S.C. § 3553(a )

. See United States v. O lhovsky , 562 F.3d 530, 546 (3d Cir. 2009) (citing United States v. Cooper , 437 F.3d 324, 329 (3d Cir. 2006 )). A district court ‟ s “ failure to consider the § 3553(a) factors ” can create a procedurally unreasonable sentence. United States v. Levinson , 543 F.3d 190, 195 (3d Cir. 2008) (quoting Gall v. United States , 552 U.S. 38, 51 (2007) ). We find that the District Court adequately addressed the § 3553(a) factors at the sentencing hearing . In the sentencing transcript, the District Court acknowledged his obligation to list the § 3553(a) fa ctors, examine them, and discuss the applicable factors substantively. The District Court stated “I take all of those things [the § 3553(a) factors] ,

7 § 3B1.1(b) states that “ If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.”11

into consideration in determining what is the appropriate sentence.” (Appellant‟s App ., Vol. II , 127a

- 28 a . ) The District Court discussed in particular, the nature and circumstances of the offense, describing it as a “serious sophisticated forgery and fraud crime conspiracy that the Court takes very seriously.” ( Id. at 128a

. ) Substantive Unreasonableness Alcantara‟s final argument is that the sentence is substantively unreasonable and is an abuse of discretion. The substantive component of a reasonableness review requires the appellate court to take into account the totality of the circumstances. United States v. Lychock , 578 F.3d 214, 21 7 (3d Cir. 2009). Although the appellate court considers the extent of any variance from the advisory Guidelines range, it must also give due deference to the district court‟s decision that the § 3553(a) factors, on a w hole, justify the extent of the variance. Id. The substantive reasonableness of each sentence must be evaluated on its own terms, based on the reasons that the district court provided, in light of the particular facts and circumstances of that case. Tom ko , 562 F.3d at 57 4 . In examining the totality of the circumstances, we determine whether a ny reasonable court

c ould have applied the same sentence as the District Court. See Lychock , 578 F.3d at 219 n.2

. During the sentencing hearing, Alcantara reques ted leniency by the Court, and also requested a downward variance . At the hearing, t he District Court discussed the circumstances of th e conspiracy at great length. The District Court thoroughly12

c onsidered the effect of the crime on individual victims, t he losses incurred, the effect o n Alcantara‟s family, and letters from Alcantara‟s supporters and from the government

. T he District Court considered and discussed the § 3553(a) factors . T he record contains numerous indications that the District Court ev aluat ed all of the circumstances
of this c onspiracy and used its discretion in deciding that a variance was not warranted in this case. For example, the District Court stated that even after giving Alcantara the benefit of the doubt, it still recommended a sentence above the statutory cap. (Appellant‟s App., Vol. II, 129a

. ) That determination and the sentence imposed are well within the District Court‟s broad discretion

. This Court has emphasized that sentences falling within the advisory Guidelines ran ge are more likely to be reasonable than those falling outside of that range. See United States v. Olfano , 503 F.3d 244

- 45 (3d Cir. 2007). The sentence imposed here was not substantively unreasonable and there is no abuse of discretion in rendering this s entence

. I V . CONCLUSION
The District Court rendered a sentence that is both procedurally and substantively reasonable. We will affirm the judgment of conviction.