USA v. Vinath Oudomsine

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10924
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VINATH OUDOMSINE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 3:21-cr-00013-DHB-BKE-1
____________________
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2 Opinion of the Court 22-10924
Before LAGOA , BRASHER , and ED C ARNES, Circuit Judges.
ED CARNES, Circuit Judge:
Vinath Oudomsine appeals his sentence of 36 months im-
prisonment for wire fraud, which is an upward variance from the
guidelines range of 8 to 14 months. The district court imposed that
sentence after Oudomsine pleaded guilty to providing false infor-
mation to obtain an $85,000 Economic Injury Disaster Loan under
the Coronavirus Aid, Relief, and Economic Security Act. He chal-
lenges the procedural and substantive reasonableness of his sen-
tence.
I.
We ordinarily review the procedural reasonableness of a
sentence for abuse of discretion.
See Gall v. United States, 552 U.S.
38, 51 (2007);
United States v. Harris, 964 F.3d 986, 988 (11th Cir.
2020). But where, as here, the defendant did not object to the pro-
cedural reasonableness of his sentence at the time of sentencing,
we review only for plain error.
United States v. Vandergrift, 754
F.3d 1303, 1307 (11th Cir. 2014). To prevail under plain error re-
view, the defendant must show: (1) there was an error (amounting
to an abuse of discretion); (2) that was plain; (3) that affected his
substantial rights; and (4) that seriously affected the fairness of the
judicial proceedings.
United States v. Ramirez-Flores, 743 F.3d 816,
822 (11th Cir. 2014).
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22-10924 Opinion of the Court 3
A sentence is procedurally unreasonable if the district court
fails to adequately explain the sentence, including any variance
from the guidelines range.
See United States v. Shaw, 560 F.3d
1230, 1237 (11th Cir. 2009). The court is required “at the time of
sentencing . . . to state in open court the reasons for its imposition
of the particular sentence.” 18 U.S.C. § 3553(c). If the sentence is
within the guidelines range and exceeds 24 months, the court must
state “the reason for imposing a sentence at a particular point
within the range.”
Id. § 3553(c)(1). And if the sentence is outside
the guidelines range, the court must not only state “the specific rea-
son[s]” for the variance in open court but must also state those rea-
sons “with specificity in a statement of reasons form.”
Id.
§ 3553(c)(2). The court’s reason must be “sufficiently compelling
to support the degree of the variance,”
Harris, 964 F.3d at 988, and
it must be specific enough to allow for meaningful appellate re-
view,
United States v. Parks, 823 F.3d 990, 997 (11th Cir. 2016). We
review
de novo whether the district court complied with
§ 3553(c)(2), even if the defendant did not make a timely objection
to the district court’s failure to comply with it.
Id. at 996–97;
see
also United States v. Brown, 879 F.3d 1231, 1234 (11th Cir. 2018).
At sentencing the district court properly determined that
Oudomsine’s total offense level was 11 and his criminal history cat-
egory was I, resulting in a guidelines range of 8 to 14 months. The
court varied upward and sentenced Oudomsine to 36 months — a
sentence well below the 240-month statutory maximum penalty.
Oudomsine contends that his sentence is procedurally
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4 Opinion of the Court 22-10924
unreasonable because the district court didn’t adequately explain
the upward variance. We disagree.
The court explicitly stated at sentencing that in varying up-
ward it had considered the parties’ arguments, the sentencing
guidelines, the advisory guidelines range, the presentence investi-
gation report (PSR),1 and the 18 U.S.C. § 3553(a) sentencing fac-
tors. The court also explained why the chosen sentence was ap-
propriate in light of the § 3553(a) factors and undisputed facts in the
record, and it repeated that explanation on the statement of reasons
form.
The court’s reasoning was that Oudomsine’s fraud was not
the kind of ordinary fraud contemplated by the guidelines because
he used “his education, ability, and background to steal money
from a national benevolence,” taking $85,000 from a federal relief
program designed to save the economy during the pandemic. In
committing that crime, the court explained, Oudomsine had
shown “blatant disregard for the people who needed these funds
and for the people who paid for this program.” Deeming deter-
rence to be the most important sentencing factor, the court deter-
mined that the upward variance sentence was “sufficient, but not
greater than necessary, to meet the crime [Oudomsine] committed
1 The court adopted the factual findings in the PSR without objection. Factual
findings for purposes of sentencing may be based on undisputed statements in
the PSR.
United States v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).
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22-10924 Opinion of the Court 5
and to demonstrate to the world the likely result of the commission
of the same or similar criminal act.”
The district court was not required to state on the record
that it explicitly considered each § 3553(a) factor or to discuss each
factor.
United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir.
2013). It is enough that the record reflects the court’s consideration
of the sentencing factors and the parties’ arguments.
United States
v. Cabezas-Montano, 949 F.3d 567, 609 (11th Cir. 2020). The court
did give a sufficiently specific and compelling basis for the upward
variance and complied with the requirements of § 3553(c)(2).
See
Parks, 823 F.3d at 997;
Harris, 964 F.3d at 988.
Oudomsine also challenges the court’s decision to treat his
fraud as atypical compared to general, run-of-the-mill fraud cases.
We see no error. The court didn’t rely on any clearly erroneous
facts in making that decision and adequately explained why it
didn’t consider this to be a mine-run case, particularly because
Oudomsine used his education and ability to exploit a government
relief program during a time of economic upheaval.
See Kim-
brough v. United States, 552 U.S. 85, 109 (2007) (explaining that a
court’s decision to vary from the guidelines may merit the “great-
est respect” when the sentencing judge finds the case to be “outside
the heartland” of cases contemplated by the Sentencing Commis-
sion) (quotation marks omitted). The district court also empha-
sized Oudomsine’s history and characteristics, finding that he acted
“with the facility and with the ability and with a level of venality
that his age, his education, his upbringing, and his life experience
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6 Opinion of the Court 22-10924
[made] . . . all the more culpable.” There was no error, much less
plain error.
II.
Oudomsine next contends that his sentence is substantively
unreasonable. We review the substantive reasonableness of a sen-
tence for abuse of discretion, considering the totality of the circum-
stances.
Gall, 552 U.S. at 51. Oudomsine bears the burden of es-
tablishing that his sentence is unreasonable based on the record and
the § 3553(a) factors.
United States v. Rosales-Bruno, 789 F.3d
1249, 1256 (11th Cir. 2015).
The district court must impose a sentence that is “sufficient,
but not greater than necessary,” to comply with the purposes of 18
U.S.C. § 3553(a)(2). 18 U.S.C. § 3553(a).2 The court abuses its dis-
cretion when it: “(1) fails to afford consideration to relevant factors
that were due significant weight, (2) gives significant weight to an
improper or irrelevant factor, or (3) commits a clear error of judg-
ment in considering the proper factors.”
United States v. Irey, 612
F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation marks
2 Section 3553(a) directs the court to consider: (1) the nature and circum-
stances of the offense and the history and characteristics of the defendant; (2)
the need for the sentence to reflect the seriousness of the offense, promote
respect for the law, provide just punishment, deter criminal conduct, protect
the public from future crimes of the defendant, and provide the defendant
with needed educational or vocational training or medical care; (3) the kinds
of sentences available; (4) the applicable guidelines range; (5) the pertinent pol-
icy statements of the Sentencing Commission; (6) the need to avoid unwar-
ranted sentence disparities; and (7) the need to provide restitution to victims.
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22-10924 Opinion of the Court 7
omitted). That rarely happens given the nature of the enterprise
and the familiarity of district court judges with it.
See Rosales-
Bruno, 789 F.3d at 1256. We will vacate a defendant’s sentence as
substantively unreasonable only if we are “left with the definite and
firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence
that lies outside the range of reasonable sentences dictated by the
facts of the case.”
Irey, 612 F.3d at 1190 (quotation marks omitted).
A district court “has considerable discretion in deciding
whether the § 3553(a) factors justify a variance and the extent of
one that is appropriate.”
Shaw, 560 F.3d at 1238 (quotation marks
omitted). We may take the degree of variance into account, but
we do not presume that a sentence outside the guidelines range is
unreasonable and we must give due deference to the district court’s
decision that the § 3553(a) factors support its chosen sentence.
Irey, 612 F.3d at 1186–87.
Oudomsine contends that his sentence is substantively un-
reasonable because the court gave undue weight to the need for
deterrence factor without providing a compelling deterrence ra-
tionale. He claims the real reason the court varied upward was that
it did not like him, and the reason it didn’t was that of the $85,000
he obtained by fraud he spent $57,789 to buy a single Pokémon
card.3
3 Pokémon cards are collectible cards used in a trading card game.
See Poké-
mon Trading Card Game, Pokemon.com, https://www.pokemon.com/us/
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8 Opinion of the Court 22-10924
We are not persuaded. The record shows that the district
court considered the importance of deterrence along with other
§ 3553(a) factors in varying upward. Those factors included the ap-
plicable guidelines range, Oudomsine’s history and characteristics,
the seriousness of his crime, the nature and circumstances of it, and
the need to promote respect for the law and to provide just punish-
ment. Oudomsine quarrels with how the district court weighed
the § 3553(a) factors, including deterrence, but the weight given to
each factor is left to the sentencing court’s sound discretion.
Kuhlman, 711 F.3d at 1327. We will not substitute our own judg-
ment for the district court’s by reweighing them.
Id.
The district court appeared to give more weight to the need
for deterrence than to other sentencing factors, and it did not abuse
its discretion in doing so.
See Rosales-Bruno, 789 F.3d at 1254. We
have emphasized that “general deterrence is a critical factor that
must be considered and should play a role in sentencing defend-
ants.”
United States v. Howard, 28 F.4th 180, 208 (11th Cir. 2022).
Indeed, it is “one of the key purposes of sentencing.”
United States
v. McQueen, 727 F.3d 1144, 1158 (11th Cir. 2013) (quotation marks
omitted).
And we have expressed the view that “[g]eneral deter-
rence is more apt, not less apt, in white collar crime cases.”
How-
ard, 28 F.4th at 209;
see also United States v. Martin, 455 F.3d 1227,
1240 (11th Cir. 2006) (“[T]he Congress that adopted
pokemon-tcg (last visited Dec. 22, 2022).
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22-10924 Opinion of the Court 9
the § 3553 sentencing factors emphasized the critical deter-
rent value of imprisoning serious white collar criminals, even
where those criminals might themselves be unlikely to commit an-
other offense[.]”). “[E]conomic and fraud-based crimes are more
rational, cool and calculated than sudden crimes of passion or op-
portunity, which makes them prime candidates for general deter-
rence.”
Howard, 28 F.4th at 209 (quotation marks omitted). Be-
cause “[w]hite collar criminals often calculate the financial gain and
risk of loss of their crimes . . . an overly lenient sentence sends the
message that would-be white-collar criminals stand to lose little
more than a portion of their ill-gotten gains and practically none of
their liberty.”
Id. (quotation marks omitted).
Oudomsine argues that notwithstanding how important it
might be in other cases, deterrence is not particularly relevant here
because the pandemic relief efforts have pretty much ended and
there is no longer an opportunity (or as much opportunity) to com-
mit the specific type of fraud he committed, and hence not much
need to deter the commission of it. We disagree. The deterrent
effect of the sentence in a fraud or theft case involving a specific
government program extends beyond commission of the same
type of crime against the same program. Punishing white collar
criminals serves to deter others from committing white collar
crimes, not merely to deter the defendant or others from commit-
ting a crime that is materially identical to the one that resulted in
the defendant’s sentence.
See generally Martin, 455 F.3d at 1240
(highlighting the importance of a prison sentence in deterring
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10 Opinion of the Court 22-10924
others from committing white collar crimes, even if the defendant
being sentenced isn’t likely to commit the same type of crime
again).
While the federal program Oudomsine bilked no longer ex-
ists, deterring fraud and other crimes against future multi-billion-
dollar government programs remains an important sentencing
goal. As we had occasion to comment recently, “Like bears to
honey, white collar criminals are drawn to billion-dollar govern-
ment programs.”
Howard, 28 F.4th at 186 (citing examples of con-
victions for fraud, kickbacks, and other crimes involving federal
health care programs). The crimes are serious and the monetary
losses are large, as some individual cases show.
See, e.g.,
United
States v. Rodriguez, 627 F.3d 1372, 1375 (11th Cir. 2010) (“Over a
nine-month period, [the defendant and her co-defendant] submit-
ted to Medicare over $19,000,000 in fraudulent claims and received
over $3,200,000 in payments. . . . It was all fraud, perfectly pure and
somewhat simple.”). The need for deterrence of government fraud
crimes is great.
Now for a couple of miscellaneous contentions. One is
Oudomsine’s argument that the deterrence rationale isn’t compel-
ling because deterrence was accounted for in the PSR. It almost
invariably is accounted for in that way, yet we have held that “[t]he
district court may vary upward based on conduct that was already
considered in calculating the guideline range.”
United States v.
Taylor, 997 F.3d 1348, 1355 (11th Cir. 2021).
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22-10924 Opinion of the Court 11
As for Oudomsine’s argument that the court varied upward
in sentencing because it did not like him, there is nothing in the
record to support the proposition that the judge did not “like
him” –– whatever that means in this context. But it would not be
surprising, or disqualifying, if a judge did not “like” a person who
defrauded a federal program of funds intended to promote the pub-
lic good and help small businesses, particularly when the stolen
funds were used for the purpose of purchasing a $57,789 Pokémon
card. Besides, Oudomsine’s motive and the use to which he put his
ill-gotten gains are relevant to the § 3553(a)(1) factor of “the nature
and circumstances of the offense and the history and characteristics
of the defendant.” Their relevance does not depend on whether
the judge likes the defendant.
Finally, Oudomsine’s sentence of 36 months is far below the
240-month statutory maximum, which is a strong indication of rea-
sonableness.
See Taylor, 997 F.3d at 1355.
The court appropriately considered the relevant § 3553(a)
factors, provided a sufficiently compelling justification for varying
from the guidelines range, and imposed a sentence that is both pro-
cedurally and substantively reasonable.
AFFIRMED.
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