USA v. David Lewalski

Filing

Opinion issued by court as to Appellant David R. Lewalski. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 11-15595

Date Filed: 09/09/2013

Page: 1 of 10

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15595
Non-Argument Calendar
________________________
D.C. Docket No. 8:10-cr-00501-JDW-MAP-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID R. LEWALSKI,
a.k.a. David Richard Lewalski,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 9, 2013)
Before HULL, MARTIN and JORDAN, Circuit Judges.
PER CURIAM:
David Lewalski appeals his 240-month sentence, the statutory maximum for
his offense, which was imposed above the applicable guideline range, after he

Case: 11-15595

Date Filed: 09/09/2013

Page: 2 of 10

pleaded guilty to mail fraud in violation of 18 U.S.C. § 1341. Lewalski was
convicted for perpetrating a massive Ponzi scheme that ensnared over 500 victims
who lost nearly $19 million. His guideline calculation resulted in a range of 188235 months. Lewalski argues on appeal that the district court erred in several ways
when it sentenced him to 5 months above the applicable range. Because Lewalski
did not object to his sentence in the district court below, we review the issues for
plain error on appeal. United States v. Hoffman, 710 F.3d 1228, 1231–32 (11th
Cir. 2013); see also United States v. Thayer, 204 F.3d 1352, 1356 (11th Cir. 2000)
(applying plain error review where a defendant argues for the first time on appeal
that the government breached a plea agreement). “Plain error requires the
defendant to show: (1) an error; (2) that is plain; (3) that affects substantial rights;
and (4) that seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Hoffman, 710 F.3d at 1232 (quotation marks omitted).
I.
First, Lewalski argues that the district court erred by failing to “enforce” his
plea agreement when it sentenced him outside the guidelines range recommended
by the government.
Of course, the government may make a sentencing recommendation
pursuant to a plea agreement. Fed. R. Crim. P. 11(c)(1)(B). However, the district
court is not bound by such a recommendation. Fed. R. Crim. P. 11(c)(3); accord
2

Case: 11-15595

Date Filed: 09/09/2013

Page: 3 of 10

Smith v. United States, 670 F.2d 145, 148 (11th Cir. 1982) (holding, in a habeas
action under 28 U.S.C. § 2255, that “[s]entencing recommendations by the
prosecution are just that, recommendations, which may be considered by, but
cannot be made binding on, the trial judge”).
Lewalski had notice that the court could exceed the guideline range. The
plea agreement clearly stated that the district court would not be bound by the
government’s recommendation, and during the plea colloquy, Lewalski made clear
that he understood that the government’s recommendations are not binding. The
district court did not err, plainly or otherwise, when it chose to sentence Lewalski
above the guidelines range because it was not bound by the government’s
recommendation of a sentence within the applicable sentencing guideline range.
See Fed. R. Crim. P. 11(c)(1)(B), (3).
II.
Second, Lewalski argues that the court should not have considered at the
sentencing hearing a letter that he intended to send to his girlfriend, in which he
bragged about snookering the prosecutor and probation officer in order to receive a
lighter sentence.
A court may consider any information at sentencing, regardless of
admissibility at trial, as long as “the information has sufficient indicia of reliability
to support its probable accuracy.” United States Sentencing Guidelines (USSG)
3

Case: 11-15595

Date Filed: 09/09/2013

Page: 4 of 10

§ 6A1.3(a); see also 18 U.S.C. § 3661. We have held that a court may consider
information at a sentencing hearing when (1) the information has sufficient indicia
of reliability; (2) the court makes explicit findings of fact as to credibility; and (3)
the defendant has an opportunity to rebut the evidence. See United States v.
Anderton, 136 F.3d 747, 751 (11th Cir. 1998) (applying this reliability test to
hearsay evidence); United States v. Query, 928 F.2d 383, 384–85 (11th Cir. 1991)
(explaining that a sentencing court may consider “any information . . . so long as
the defendant has an opportunity to rebut the evidence or generally cast doubt upon
its reliability”).
The district court did not err in considering the letter. The sentencing court
discussed Lewalski’s authorship of the letter and referred to statements in the letter
that were corroborated by Lewalski’s interactions with his probation officer.
Rather than rebut this evidence, Lewalski’s attorney acknowledged that Lewalski
wrote the letter. Thus, Lewalski’s letter to his girlfriend had sufficient indicia of
reliability and the district court did not commit error, plain or otherwise, in
considering the letter at the sentencing hearing. See Anderton, 136 F.3d at 751.
III.
Third, Lewalski argues that the prosecutor improperly revealed to the court
that he had a $100,000 “get-away” fund, in violation of a promise in the plea
agreement to not provide the court with self-incriminating information offered by
4

Case: 11-15595

Date Filed: 09/09/2013

Page: 5 of 10

Lewalksi in cooperation with the government to determine his applicable guideline
range.
The Sentencing Guidelines provide that, when a defendant cooperates with
the government by providing information about the crimes of others, and in
exchange the government agrees not to use self-incriminating information revealed
during the cooperation against the defendant, the sentencing court should not use
such self-incriminating information to determine the sentencing guideline range.
USSG § 1B1.8(a). This restriction does not apply, however, if the government
knew the information before entering into the agreement or if the defendant
breaches the agreement. Id. § 1B1.8(b)(1).
Due process requires the government to honor the promises that it makes in
a plea agreement. United States v. Al-Arian, 514 F.3d 1184, 1190 (11th Cir.
2008). Under a plea agreement, the government is bound by the material promises
made to a criminal defendant that induce the defendant to plead guilty. Santobello
v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971). Whether the
government violated a plea agreement depends on the defendant’s reasonable
understanding of the plea agreement at the time the plea was entered. United
States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992). When the government’s
actions do not violate the terms of the plea agreement, there is no breach. See
United States v. Forney, 9 F.3d 1492, 1500 n.2 (11th Cir. 1993) (concluding that,
5

Case: 11-15595

Date Filed: 09/09/2013

Page: 6 of 10

because the government did not break a promise to consider the defendant’s
assistance, and never promised that it would file a substantial-assistance motion, it
did not fail to comply with the terms of the plea agreement).
Again, Lewalski can prove no error, plain or otherwise, based on the
prosecutor’s description of Lewalski’s “get-away” fund during the sentencing
hearing. First, Lewalski did not object to the comment at sentencing. Neither has
he done anything to show that the government learned about the “get-away” fund
from Lewalski’s cooperation alone. He has not, therefore, shown a breach. Cf.
USSG § 1B1.8(b)(1); United States v. Pham, 463 F.3d 1239, 1244 (11th Cir. 2006)
(“[S]o long as the information is obtained from independent sources or separately
gleaned from codefendants, it may be used at sentencing without violating
§ 1B1.8.”). Second, and more importantly, there is no evidence that the
information was used in “determining the applicable sentencing guideline range,”
which was what was actually prohibited by the plea agreement. Rather, the
information was used in the context of opposing Lewalski’s request for a
downward variance from the guideline range that had already been determined.
Thus, Lewalski can show no breach of the plea agreement and no error, plain or
otherwise. See Forney, 9 F.3d at 1500 n.2.

6

Case: 11-15595

Date Filed: 09/09/2013

Page: 7 of 10

IV.
Fourth, Lewalski argues that the district court did not provide an adequate
explanation for imposing a sentence in excess of the guidelines range.
We consider the adequacy of a district court’s explanation for a sentence
when we review the reasonableness of a sentence under a deferential
abuse-of-discretion standard. United States v. Pugh, 515 F.3d 1179, 1190 (11th
Cir. 2008). The district court must impose a sentence that is “sufficient, but not
greater than necessary, to comply with the purposes” set forth in 18 U.S.C.
§ 3553(a)(2), including the need “to reflect the seriousness of the offense, to
promote respect for the law, . . . to provide just punishment for the offense,” to
deter criminal conduct, and “to protect the public from further crimes of the
defendant.” 18 U.S.C. § 3553(a)(2). The district court must also consider the
other factors listed in § 3553(a). See id. § 3553(a)(1), (3)-(7).
In reviewing the reasonableness of a sentence, we use a two-step process.
Pugh, 515 F.3d at 1190. First, we ensure that the sentence is procedurally
reasonable, meaning that the district court properly calculated the guideline range,
treated the guidelines as advisory, considered the § 3553(a) factors, did not select a
sentence based on clearly erroneous facts, and adequately explained the chosen
sentence. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007).
Second, if we determine that a sentence is procedurally sound, we then examine
7

Case: 11-15595

Date Filed: 09/09/2013

Page: 8 of 10

whether the sentence is substantively reasonable in light of the totality of the
circumstances. Id.
The party challenging the sentence bears the burden to show that the
sentence is unreasonable in light of the record and the § 3553(a) factors. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). A sentencing court may
impose a sentence more severe than the guideline range so long as that sentence is
reasonable. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005); see
also United States v. Irizarry, 458 F.3d 1208, 1211–12 (11th Cir. 2006) (upholding
a sentence nine months greater than the guideline range). Furthermore, a district
court’s decision to vary upward from a sentence within the guideline range to the
statutory maximum is reasonable if the court gives adequate consideration to the
circumstances of the case and the § 3553(a) factors. See United States v. Shaw
560 F.3d 1230, 1240–41 (11th Cir. 2009) (holding that a sentencing court’s
“methodical review of the § 3553(a) factors” justified varying upward to the
statutory maximum sentence).
When reviewing a sentence outside the guidelines range, we may take into
account the degree of variance from the guidelines range, but “extraordinary”
circumstances are not required to justify a sentence outside the guidelines range.
Gall, 552 U.S. at 47, 128 S. Ct. at 594–95. Instead, the justification for the
variance must be “sufficiently compelling to support the degree of the variance.”
8

Case: 11-15595

Date Filed: 09/09/2013

Page: 9 of 10

United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (en banc) (quotation
marks omitted). We give “due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 1187
(quotation marks omitted).
The district court did not err, plainly or otherwise, in sentencing Lewalski
above the guidelines range to the statutory maximum. Lewalski’s sentence is
procedurally reasonable because the record clearly shows that the district court
considered the § 3553(a) factors and adequately explained the chosen sentence. In
varying from the guideline range, the court explained its serious concern about the
need to protect the public from future crimes of the defendant and its worry that a
more lenient sentence would not deter Lewalski and his “arrogance and greed”
from reoffending. By considering the § 3553(a) factors and explaining the
sentence, the district court imposed a procedurally reasonable sentence. See Gall,
552 U.S. at 51, 128 S. Ct. at 597.
Likewise, Lewalski’s sentence is substantively reasonable in light of the
totality of the circumstances. The record before the District Court reflects that
while perpetrating the Ponzi scheme, Lewalski lived extravagantly on his over 500
victims’ money and used sophisticated, deceitful tactics to encourage investors to
give him more funds. Rather than showing remorse, Lewalski wrote a letter to his
girlfriend bragging that he was going to get away with his actions with only a short
9

Case: 11-15595

Date Filed: 09/09/2013

Page: 10 of 10

sentence. Given the district court’s thorough justification and the small variance,
only 5 months outside the guideline range of 188 to 235 months imprisonment, the
court’s decision to impose the statutory maximum of 20 years imprisonment was
substantively reasonable. See Irey, 612 F.3d at 1186–87. Thus, Lewalski can
show no error, plain or otherwise, in his above-guidelines sentence.
V.
For these reasons, we affirm.
AFFIRMED.

10