USA v. Michael Rubens

Filing

Opinion issued by court as to Appellant Michael Daniel Rubens. 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: 06/08/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11170
Non-Argument Calendar
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D.C. Docket No. 4:15-cr-00033-RH-CAS-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL DANIEL RUBENS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(June 8, 2017)

Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:

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Michael Daniel Rubens appeals the 120-month total sentence he received
after pleading guilty to various offenses involving stalking via the internet. Rubens
asserts his total sentence is procedurally unreasonable because the district court
failed to give specific reasons for its sentence. He also contends his total sentence
is substantively unreasonable because the conduct the court considered was already
accounted for by the Sentencing Guidelines. He suggests his total sentence is
unreasonable because in sentencing him, the district court improperly tried to
“send a message.” After review, we affirm Rubens’ sentence.
I. DISCUSSION
A. Procedural reasonableness
We review the reasonableness of a sentence under a deferential abuse of
discretion standard of review. Gall v. United States, 552 U.S. 38, 41 (2007). In
reviewing the procedural reasonableness of a sentence, we ensure the district court
properly calculated the Guidelines range, treated the Guidelines as advisory,
considered the applicable 18 U.S.C. § 3553(a) factors, did not select a sentence
based on clearly erroneous facts, and adequately explained the chosen sentence.
Id. at 51. “Although the district court must provide some explanation for the
sentence, nothing ... requires the district court to state on the record that it has
explicitly considered each of the § 3553(a) factors or to discuss each of the
§ 3553(a) factors.” United States v. Docampo, 573 F.3d 1091, 1100 (11th Cir.
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2009) (quotations omitted). Additionally, this Court has held “the district court, in
imposing a variance, may consider conduct that a probation officer already had
considered in calculating the defendant’s advisory guidelines range.” United
States v. Johnson, 803 F.3d 610, 619 (11th Cir. 2015) (quotations omitted).
Rubens’ procedural reasonableness challenge fails. The district court stated
the reasons for the 120-month total sentence it imposed, explaining there were “a
number of very aggravating circumstances” in the case “that [were] not taken into
account in the guideline at all.” Specifically, referencing the nature of the offense
conduct, the court noted that Rubens had photoshopped pictures of the victims
engaged in sexual acts that did not occur and cited the circumstances involving the
distrust created in one victim’s marriage, as well as the circumstances involving
the victim married to a military serviceman stationed overseas. Indeed, the court
stated the “most important factor” that affected its decision was the “nature of the
offense and the impact on the victims.” The court also stated as a reason for its
sentences, the length of time that Rubens engaged in the offense conduct, and the
need for general deterrence. Moreover, the court stated that it had considered the
§ 3553(a) factors, and that under all of the circumstances, the total sentence
imposed was appropriate. Thus, the court adequately explained the sentence it
imposed.

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Contrary to Rubens’ contention, the district court did not err in considering
conduct that had already been considered in the calculation of his guideline range.
See Johnson, 803 F.3d at 619. Finally, Rubens’ challenge to the reasonableness of
his total sentence based on his arguments under §§ 5K2.0, 5K2.3 or 5K2.8 are
meritless, because the district court did not impose an upward departure, but rather,
relied on the § 3553(a) factors in imposing an upward variance.
B. Substantive reasonableness
We consider whether a sentence is substantively unreasonable under the
totality of the circumstances and in light of the 18 U.S.C. § 3553(a) factors. United
States v. Johnson, 803 F.3d 610, 618 (11th Cir. 2015). The district court must
impose a sentence “sufficient, but not greater than necessary, to comply with the
purposes” listed in § 3553(a)(2), including the need to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense, deter
criminal conduct, and protect the public from the defendant’s future criminal
conduct. 18 U.S.C. § 3553(a). In imposing a particular sentence, the court must
also consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the applicable
Guidelines range, the pertinent policy statements of the Sentencing Commission,
the need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. See id. § 3553(a)(1), (3)-(7). A district court abuses its
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discretion in imposing a sentence when it (1) fails to afford consideration to
relevant factors, (2) gives significant weight to an improper or irrelevant factor, or
(3) commits a clear error of judgment in considering the proper factors. United
States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).
“Even as to a substantial variance,” we will not reverse a sentence unless 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.”
Johnson, 803 F.3d at 618-19 (quotations omitted). “A sentence’s variance outside
the guidelines range, whether upward or downward, represents a district court’s
judgment that the combined force of the other § 3553(a) factors are entitled to
greater weight than the guidelines range.” United States v. Rosales-Bruno, 789
F.3d 1249, 1259 (11th Cir. 2015). The Supreme Court has held that “variances
from the advisory guidelines range can sometimes be based on the sentencing
judge’s disagreement with whether a guideline properly reflects the § 3553(a)
factors,” Id. at 1254 (quoting Kimbrough v. United States, 552 U.S. 85, 105–09
(2007)), evidencing the discretionary nature of the application of the § 3553(a)
factors.
The district court did not abuse its discretion in imposing an upward
variance and Rubens’ 120-month total sentence was substantively reasonable.
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First, the district court was free to consider any information relevant to Rubens’
conduct in imposing an upward variance. See United States v. Tome, 611 F.3d
1371, 1379 (11th Cir. 2010) (citing 18 U.S.C. § 3661) (explaining the district court
is free to consider any information relevant to a defendant’s background, character,
and conduct in imposing an upward variance). In doing so here, the district court
considered the serious nature of the offense including, the fact that Rubens
photoshopped sexual acts of the victims and posted them online, the effects
Rubens’ actions had on the victims and their personal relationships, and the length
of time Rubens engaged in the offense. Finally, while Rubens suggests the district
court’s 120-month total sentence was substantively unreasonable because the court
tried to “send a message” in sentencing him, the need for general deterrence is a
proper factor under § 3553(a) for the district court to consider in sentencing a
defendant. See 18 U.S.C. § 3553(a).
In sum, the district court was within its discretion to determine an upward
variance was warranted based on the nature of the offense conduct, which included
specific aggravating conduct, the length of time that the conduct occurred, the
impact on the victims, as well as the need for general deterrence. Rosales-Bruno,
789 F.3d at 1254, 1259. Rubens has not shown the district court abused its
discretion in doing so.

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II. CONCLUSION
Rubens’ 120-month total sentence is both procedurally and substantively
reasonable. Thus, we affirm.
AFFIRMED.

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