USA v. Terri Mollica

Filing

Opinion issued by court as to Appellant Terri McGuire Mollica. 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.

Case: 15-14817

Date Filed: 06/30/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14817
Non-Argument Calendar
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D.C. Docket No. 2:15-cr-00224-VEH-TMP-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRI MCGUIRE MOLLICA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(June 30, 2016)

Before MARTIN, JULIE CARNES, and EDMONDSON, Circuit Judges.

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PER CURIAM:

Terri McGuire Mollica appeals her 28-month total sentence of
imprisonment, imposed after she pleaded guilty to one count of unlawful use of a
communication facility to commit a felony, in violation of 21 U.S.C. § 843(b), and
received a statutory enhancement pursuant to 18 U.S.C. § 3147 for committing that
offense while on bond. She argues that her total sentence was substantively
unreasonable because the district court improperly implemented the division of
sentences required by 18 U.S.C. § 3147 and U.S.S.G. § 3C1.3. She also argues
that her total sentence, which included a 100% upward variance, was substantively
unreasonable.

I.

We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591,
169 L. Ed. 2d 445 (2007). The commentary and application notes of the
Sentencing Guidelines are authoritative unless we determine that they “violate[]
the Constitution or a federal statute, or [are] inconsistent with, or a plainly

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erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38,
113 S. Ct. 1913, 1915, 123 L. Ed. 2d 598 (1993).
Federal law states that a person who commits a felony while released on
bond pending another criminal process shall have their sentence enhanced by up to
ten years, which must be entered as a separate, additional sentence that must run
consecutively to all other sentences imposed. 18 U.S.C. § 3147(1). Section 3C1.3
of the Sentencing Guidelines states that if an enhancement under § 3147 applies,
the offense level should be increased by three. U.S.S.G. § 3C1.3. The Sentencing
Guidelines commentary states that a district court should first determine the total
sentence it will impose, in accordance with the guideline range. U.S.S.G. § 3C1.3
comment. (n.1). After determining the total sentence, the district court should then
divide the sentence “between the sentence attributable to the underlying offense
and the sentence attributable to the enhancement.” Id.
We have not previously addressed how much of a total sentence a court can
apportion to a separate sentence imposed under 18 U.S.C. § 3147 and U.S.S.G.
§ 3C1.3. In United States v. Martell, 906 F.2d 555 (11th Cir. 1990), we vacated a
sentence when the district court imposed the full ten year enhancement under
§ 3147 without providing a justification for doing so on the record. Id. at 559.
Martell is distinguishable, however, because it involved a previous version of the

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guidelines, which contemplated a base offense level for a violation of § 3147,
instead of the current system. See id.
In 2009, the Sentencing Commission amended § 3C1.3 by adding examples
to the commentary to help clarify how to divide the sentence. See U.S.S.G. App.
C, amend. 734.; U.S.S.G. § 3C1.3 comment. (n.1) (“Similarly, if the applicable
adjusted guideline range is 30-37 months and the court determines a ‘total
punishment’ of 30 months is appropriate, a sentence of 24 months for the
underlying offense plus 6 months under 18 U.S.C. § 3147 would satisfy this
requirement.”). As part of its reason for the amendment, the Sentencing
Commission stated its view that, in cases involving a separate sentence under
§ 3147, the court should divide the sentence between the underlying offense and
the § 3147 enhancement “as the court considers appropriate.” U.S.S.G. App. C,
amend. 734.
We agree with the Sentencing Commission that courts are not limited to the
amount attributable to the three-level enhancement when dividing a sentence
pursuant to 18 U.S.C. § 3147. Still, they must consider the general 18 U.S.C.
§ 3553(a) sentencing factors when deciding how much of a sentence to attribute to
the § 3147 enhancement. The district court did so here. The instant offense was
directly related to the judicial proceedings for which Mollica was released on
bond: the victims were a co-conspirator and the spouse of a prosecutor. Thus, the
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district court’s finding that the instant offense was an attempt to interfere with
those judicial proceedings was supported by the record. Because the sentence for
the underlying crime is set to run concurrent to the sentence that Mollica will
receive for her fraud convictions, the district court included the 14-month sentence
imposed consecutively under § 3147 to send a message against this kind of
behavior. Thus, the nature of the offense and the need to uphold the law and
integrity of judicial proceedings both point in the direction of a large enhancement.
The district court did not abuse its discretion when it imposed a substantial
sentencing enhancement pursuant to 18 U.S.C. § 3147: a large enhancement was
justified based on the § 3553(a) sentencing factors.

II.

We review the substantive reasonableness of a sentence under a deferential
abuse of discretion standard. Gall, 552 U.S. at 41, 128 S. Ct. at 591. The party
who challenges the sentence bears the burden to show that the sentence is
unreasonable given the seven § 3553(a) factors and the record. United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The district court must consider all
the factors, but it is allowed to attach greater weight to one factor over the others.
United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). “While the district

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court making such an upward variance must have a justification compelling
enough to support the degree of the variance and complete enough to allow
meaningful appellate review,” we will only vacate a sentence as substantively
unreasonable if 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.” United States v. Early, 686
F.3d 1219, 1221 (11th Cir. 2012). A sentence imposed outside the Guidelines
range is not automatically presumed to be unreasonable; no rigid mathematical
formula determines the strength of the justifications necessary for a particular
degree of variance. Gall, 552 U.S. at 47, 128 S. Ct. at 595. See also Early, 686
F.3d at 1222-23 (11th Cir. 2012) (upholding a 116% upward variance based on
defendant’s criminal history and need for deterrence, to protect society and to
promote respect for the law); Shaw, 560 F.3d at 1241 (upholding a 224% upward
variance based on defendant’s criminal history and need for deterrence, to protect
society and to promote respect for the law); United States v. Turner, 474 F.3d
1265, 1281 (11th Cir. 2007) (upholding a 281% upward variance). In addition, a
sentence that is substantially below the maximum statutory penalty is a large
indicator that the sentence is reasonable. See United States v. Gonzalez, 550 F.3d
1319, 1324 (11th Cir. 2008).
Upon review of the record and the parties’ briefs, we affirm.
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The total sentence of 28 months is substantively reasonable. The district
court properly considered the section 3553(a) factors when imposing a substantial
upward variance. The victims of the instant offense were a co-conspirator and the
spouse of a prosecutor that were involved in Mollica’s fraud and money laundering
conviction. The district court noted the nature and circumstances of the offense
indicated that the offense was conducted in a calculating and sophisticated way, in
an attempt either to intimidate or to retaliate against a co-conspirator and a
prosecutor trying her case. The district court also noted a need to uphold the law
and adequately to deter criminal conduct of an intimidating or vindictive nature.
The nature of the offense and the need to uphold the law and integrity of judicial
proceedings both point in the direction of a large enhancement. Furthermore, the
resulting sentence was 28 months, which is substantially below the statutory
maximum of 48 months. See id.
AFFIRMED.

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MARTIN, Circuit Judge, concurring:
I agree with the majority that under the binding precedent of this Court,
when the District Court sentenced Ms. Mollica to 28 months in prison, even though
it was twice as long as the top of Ms. Mollica’s properly calculated guideline range
of 8 to 14 months, it did not impose a substantively unreasonable sentence.
However, I write separately to emphasize the importance of abiding by the
Supreme Court’s directive to “consider the extent of the deviation and ensure that
the justification is sufficiently compelling to support the degree of the variance” in
upward-departure cases like this. Gall v. United States, 552 U.S. 38, 50, 128 S. Ct.
586, 597 (2007). As the Supreme Court cautioned us, “a major departure should
be supported by a more significant justification than a minor one,” and it is the
duty of our Court and the District Court to carefully ensure that a strong
justification has been provided when a departure as large as this one has occurred.
Id.
I concur in the judgment of the majority.

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