USA v. Junior St. Fleurose
Filing
Opinion issued by court as to Appellant Junior St. Fleurose. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.
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Date Filed: 03/09/2016
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13490
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20155-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUNIOR ST. FLEUROSE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 9, 2016)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Junior St. Fleurose appeals his 41-month sentence, imposed after pleading
guilty to five counts of theft of government property, in violation of
18 U.S.C. § 641. On appeal, St. Fleurose challenges the district court’s calculation
of his criminal history score. After review, we affirm.
I. BACKGROUND
A.
Offense Conduct
St. Fleurose’s federal convictions arise out of tax refund fraud St. Fleurose
engaged in while working as a tax preparer. Specifically, between January 2010
and July 2011, St. Fleurose deposited into his personal business bank accounts at
Chase Bank and Woodforest National Bank fraudulently obtained U.S. Treasury
Department tax refund checks and wire transfers, as well as stolen and forged
Refund Application Loan checks. In total, St. Fleurose converted $418,679.66 and
affected 70 taxpayer victims. The main victim was the Internal Revenue Service
(“IRS”), which sought $112,665.95 for the five tax refunds either processed by the
IRS or stolen by St. Fleurose that were deposited in his personal bank account.
These five fraudulent obtained refunds were charged in the five counts of St.
Fleurose’s indictment.
B.
Presentence Investigation Report
St. Fleurose’s presentence investigation report (“PSI”) recommended, inter
alia: (1) a 14-level increase in St. Fleurose’s offense level because he was
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responsible for a loss amount of more than $400,000 but less than $1million,
pursuant to U.S.S.G. § 2B1.1(b)(1)(H); and (2) a total offense level of 21.
The PSI assigned St. Fleurose 2 criminal history points, 1 point for a 2011
Florida conviction for driving under the influence and 1 point for 2011 Florida
convictions for fraud, grand theft in the third degree, and cashing defrauded and
worthless checks. These latter fraud and theft convictions sprang from a state
investigation of suspicious deposits of tax return refunds into St. Fleurose’s
personal account at CitiBank. The PSI did not include the total number of victims
or the number or dollar value of deposits, but stated that, between April 15 and
April 22, 2011, “five other” tax return refunds totaling approximately $50,000
were deposited into St. Fleurose’s CitiBank account. The 1 criminal history point
for St. Fleurose’s 2011 Florida fraud and theft convictions bumped St. Fleurose’s
criminal history category from I to II. See id. U.S.S.G. ch. 5, pt. A, Sentencing
Table.
With a total offense level of 21 and a criminal history category of II, the PSI
recommended an advisory guidelines range of 41 to 51 months’ imprisonment.
Without the second criminal history point, St. Fleurose’s advisory guidelines range
would have most likely been 37 to 46 months’ imprisonment. See id.
C.
Sentencing
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At sentencing, St. Fleurose objected to his receiving 1 criminal history point
for the 2011 Florida fraud and theft convictions, arguing that these convictions
were not a “prior sentence,” under U.S.S.G. §§ 4A1.1 and 4A1.2(a), but rather part
of the relevant, though uncharged, conduct in his federal case, under U.S.S.G.
§ 1B1.3(a)(2). The district court overruled St. Fleurose’s objection, adopted the
PSI’s guidelines calculations, and calculated an advisory guidelines range of 41 to
51 months. The district court explained, however, that “for the sake of judicial
economy,” it would calculate “the correct guideline sentence,” but also would
“impose a sentence independent of the guidelines” based on what the court thought
was reasonable “under all the facts, guideline or not.”
In mitigation, St. Fleurose’s counsel argued for a sentence of house arrest
and probation, pointing out that he had no further criminal history after his arrest in
2011, successfully completed his state probation, was working, and had a strong
support network of family and friends. The district court heard personally from St.
Fleurose, who expressed remorse for his actions. St. Fleurose explained that he
was foolishly tempted by a friend’s offer of a way to make a quick buck during
hard times after his wife had a new baby.
The district court confirmed with the government that, although there were
70 individual taxpayer victims, the IRS was the only victim seeking restitution
because the IRS had paid the refunds owed to the 70 taxpayer victims. The district
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court acknowledged that it had heard some good things about St. Fleurose,
including his remorse and his rehabilitation efforts, but stressed that there were
“societal interests” to be considered as well. The district court stressed that the 70
taxpayer victims “had their refunds hijacked and were probably substantially
disrupted in their financial affairs,” and that it would have taken considerable effort
to identify who the proper taxpayers were and how much they were owed and
additional time to get their refunds paid. The district court found that St.
Fleurose’s offenses involved “certainly serious criminal conduct that impacted a
number of innocent individuals that has to be taken into account.”
The district court stated that it had considered the parties’ statements, the
PSI with the advisory guidelines, and the 18 U.S.C. § 3553(a) sentencing factors
and sentenced St. Fleurose to concurrent 41-month sentences on all five counts.
After the district court imposed a total 41-month sentence, St. Fleurose renewed
his objection “to the guideline calculation” and objected to the sentence imposed as
substantively and procedurally unreasonable. The district court responded that
“the sentence that I’ve imposed is a sentence independent of the guideline
calculation in the event that you prevail on that point on appeal,” and that the court
“believe[d] the 41-month sentence [was] a reasonable sentence.”
II. DISCUSSION
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On appeal, St. Fleurose argues that the district court erred in assigning one
criminal history point to his 2011 Florida fraud and theft convictions and should
have instead considered them as relevant conduct for guidelines calculations
purposes. After review, we conclude that any error in treating St. Fleurose’s
Florida fraud and theft convictions as prior criminal history rather than relevant
conduct was harmless and that a remand for resentencing is unnecessary.
“After the Supreme Court’s decisions in Booker and Gall, the district courts
are still required to correctly calculate the advisory Guidelines range.” United
States v. Livesay, 525 F.3d 1081, 1089 (11th Cir. 2008).1 However, “[t]he
Supreme Court and this Court have long recognized that it is not necessary to
decide guidelines issues or remand cases for new sentence proceedings where the
guidelines error, if any, did not affect the sentence.” United States v. Keene, 470
F.3d 1347, 1349 (11th Cir. 2006) (quotation marks omitted); see also Williams v.
United States, 503 U.S. 193, 203, 112 S. Ct. 1112, 1120-21 (1992) (“[O]nce the
court of appeals has decided that the district court misapplied the Guidelines, a
remand is appropriate unless the reviewing court concludes, on the record as a
whole, that the error was harmless, i.e., that the error did not affect the district
court’s selection of the sentence imposed.”).
1
United States v. Booker, 543U.S. 220, 125 S. Ct. 738 (2005); Gall v. United States, 552
U.S. 38, 128 S. Ct. 586 (2007).
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Accordingly, this Court need not reach disputed guidelines issues if, as here,
the district court has stated that “the guidelines advice that results from the
decision of those issues does not matter to the sentence imposed after the § 3553(a)
factors are considered,” and this Court concludes that “the sentence imposed
through the alternative or fallback reasoning of § 3553(a) [is] reasonable.” Keene,
470 F.3d at 1349. “In determining whether [the sentence imposed] is reasonable
we must assume that there was a guidelines error—that the guidelines issue should
have been decided in the way the defendant argued and the advisory range reduced
accordingly—and then ask whether the final sentence resulting from consideration
of the § 3553(a) factors would still be reasonable.” Id.; see also United States v.
Dean, 517 F.3d 1224, 1232 (11th Cir. 2008) (applying Keene and concluding that,
assuming the district court erroneously calculated the defendant’s guidelines range,
the sentence nevertheless “was reasonable and stands despite the disputed
guidelines issue”).
Here, even assuming the district court erred in finding that St. Fleurose’s
Florida fraud and theft convictions were sufficiently dissimilar from his federal
offenses to constitute a prior sentence under U.S.S.G. § 4A1.2(a) rather than
relevant conduct under U.S.S.G. § 1B1.3(a)(2), the error was harmless. As the
district court explained clearly and plainly, it would have imposed the same 41month sentence even if it had sustained St. Fleurose’s objection and removed the
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additional criminal history point. 2 Under this scenario, the advisory guidelines
range would have been 37 to 46 months, and St. Fleurose’s 41-month sentence still
would have fallen within that range. Furthermore, in light of the 18 U.S.C.
§ 3553(a) factors and the record, we cannot say that the district court’s chosen
sentence, in the middle of the assumed advisory guidelines range of 37 to 46
months, is unreasonable. The sentence was well below the statutory maximum
sentence of ten years, 18 U.S.C. § 641, and the offense resulted in substantial loss,
affecting 70 taxpayers in addition to the IRS. Perhaps tellingly, St. Fleurose does
not even attempt to make a reasonableness argument on appeal.
Instead, St. Fleurose’s argues that we are not bound by Keene because it
contravenes Booker’s requirement that the district court correctly calculate the
advisory guidelines range. We are not persuaded by this argument. Nothing in
Booker or its progeny suggests that appellate courts must always vacate sentences
and remand for resentencing if there is a guidelines calculation error, even if that
error is harmless and the chosen sentence is reasonable. In any event, Keene,
which post-dates and explicitly applies Booker, is binding precedent that has not
been overruled or abrogated. See United States v. Archer, 531 F.3d 1347, 1352
2
St. Fleurose acknowledges that it is unclear from the record whether his total offense
level would have remained 21 if the conduct underlying his Florida fraud and theft convictions
had been included as relevant conduct, as the total number of victims and the loss amount from
the state convictions was not clearly stated. Thus, it is at least possible that St. Fleurose’s
offense level, and hence his guidelines range, could have been higher rather than lower had he
been held accountable for the state conduct. However, for purposes of this appeal, we give St.
Fleurose the benefit of the doubt that his total offense level would have remained the same.
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(11th Cir. 2008) (explaining that under our prior panel precedent rule, subsequent
panels are bound by the holding of a prior panel “unless and until it is overruled or
undermined to the point of abrogation by the Supreme Court or by this court sitting
en banc”).
Citing United States v. Zabielski, 711 F.3d 381, 389-90 (3d Cir. 2013), St.
Fleurose contends that one of our sister Circuits has “rejected Keene’s blanket
approach.” To the contrary, in Zabielski, the Third Circuit refused to remand for
resentencing because it was convinced any error in applying a disputed threat-ofdeath guidelines enhancement was harmless based on the sentencing court’s
statements during the sentencing hearing that indicated “a high probability” it
would have imposed the same sentence irrespective of that guidelines
enhancement. 711 F.3d at 388-89. In so doing, the Third Circuit cited and
discussed Keene with approval, suggesting “[f]or the benefit of future cases,” that
“[a]n explicit statement” from the district court “that it would have imposed the
same sentence under either guidelines range would “obviate questionable appeals.”
Id. at 389. That is exactly what happened at St. Fleurose’s sentencing.
AFFIRMED.
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