USA v. Ricardo Sam

Filing

Opinion issued by court as to Appellant Ricardo Sam. 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: 05/03/2017

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-14562
Non-Argument Calendar
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D.C. Docket No. 1:09-cr-20047-JAL-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO SAM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 3, 2017)
Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Ricardo Sam appeals the revocation of his supervised release and the
resulting sentence of 24 months. The district court found Ricardo1 committed
three violations of the terms of his supervised release, revoked his release, and
imposed sentence. Ricardo argues the district court abused its discretion in finding
two of those violations. Ricardo also argues the 24-month sentence—the
maximum allowed by statute—was procedurally and substantively unreasonable.
I.
In 2009, Ricardo pleaded guilty to one count of conspiracy to commit access
device fraud and one count of aggravated identity theft. He had been arrested for
using stolen credit card account numbers to buy products and gift cards at a Target
in North Miami Beach. The district court sentenced Ricardo to 25-months
imprisonment and three years of supervised release, and ordered him to pay
$13,100.68 in restitution.
In April 2016, the U.S. probation office filed a petition in district court
alleging Ricardo had violated his supervised release by: (1) failing to pay
restitution; (2) violating the law; and (3) associating with a person engaged in

1

Both Ricardo Sam and his brother, Barry Sam, will be discussed in this opinion. For
clarity, we will refer to both brothers by their first names.
2

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criminal activity. 2 Ricardo’s supervised release had already been revoked twice
before.
On June 14, 2016, the district court held an evidentiary hearing on the
petition. At the hearing, Officer Lino Diaz testified first. He said Detective Craig
Catlin gave him the description of a car connected with possible fraud at a Target
in North Miami Beach. Officer Diaz stopped the car for illegal windshield tinting.
Ricardo was the driver of the car, while Official Coffey and Barry Sam were
passengers. Officer Diaz noticed two iPad boxes in the car, and asked Ricardo
about them. Ricardo said he bought them a week earlier at Target and threw out
the receipt. Officer Diaz next spoke with Coffey. Coffey told him they were just
at Target and he bought the two iPads there that day. He also gave Officer Diaz
the credit card he used to buy the iPads. Officer Diaz called Detective Catlin who
checked the number and determined the card was a fake.
Then, Detective Catlin testified. He said he watched Target’s video
surveillance and saw Coffey and Barry at the counter buying two iPads. Ricardo
was in the store but never at the counter. At one point, Ricardo walked past Coffey
and Barry and said something, but Ricardo did not buy anything himself.

2

Probation also alleged Ricardo was in violation of the conditions of his supervised
release by possessing credit cards and failing to timely notify his probation officer of contact
with law enforcement. The district court found Ricardo not guilty of these violations.
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The district court first found Ricardo admitted to failing to pay restitution in
violation of the terms of his supervised release. The court then found the
government proved by a preponderance of the evidence that Ricardo violated
Florida Statute § 817.034(4)(a)(3) by assisting in a scheme to defraud and obtain
property. In support of this finding, the court noted that Ricardo was in the store
throughout the purchase and then in the car, and that Ricardo lied to Officer Diaz
when he said the iPads were his. The district court also found Ricardo associated
with Coffey during his criminal activity of using fake credit cards to purchase the
iPads.
The district court calculated the guidelines range to be 4 to 10 months. The
government asked the court to sentence Ricardo to 10-months imprisonment. In
considering the sentencing factors under 18 U.S.C. § 3553(a), the court included
“the need for the sentence imposed to reflect just how serious these violations are,
to promote respect for the law and provide just punishment.” It also found Ricardo
“was previously sentenced by this Court for the same type of transaction at the
same store.” The court further said:
[Ricardo] is again found in a car with people with fraudulent credit
cards who have purchased iPads and iPad minis at a Target store.
He’s present in video at the time that at least the attempted purchase is
made. He states to the police officer that those are his iPad minis.

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The district court then sentenced Ricardo to the statutory maximum of 24 months
with one year of supervised release. Ricardo then asked for 48 hours to file
objections, but never filed those objections.
II.
A.
A district court may revoke a term of supervised release if it “finds by a
preponderance of the evidence that the defendant violated a condition of [his]
supervised release.” 18 U.S.C. § 3583(e)(3). We review a district court’s
revocation of supervised release for an abuse of discretion. United States v.
Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008) (per curiam). So we
will reverse a revocation of supervised release only if the court made a clear error
of judgment or applied a wrong legal standard. United States v. Frazier, 387 F.3d
1244, 1259 (11th Cir. 2004).
We review the court’s findings of fact for clear error. United States v.
Almand, 992 F.2d 316, 318 (11th Cir. 1993). “Where a fact pattern gives rise to
two reasonable and different constructions, the factfinder’s choice between them
cannot be clearly erroneous.” United States v. Almedina, 686 F.3d 1312, 1315
(11th Cir. 2012) (quotation omitted).
Ricardo argues the district court abused its discretion in finding he violated
the terms of his supervised release. Specifically, he says the court clearly erred in
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finding that he violated the law and that he associated with others who were
violating the law.
The district court did not abuse its discretion in finding Ricardo violated the
terms of his supervised release. First, Ricardo admitted to not paying his
restitution. Second, under Fla. Stat. § 817.034(4)(a)(3) a “person who engages in a
scheme to defraud and obtains property” under $20,000 in value is guilty of a
third-degree felony. The district court did not clearly err in finding that Ricardo
was in the store during the fraudulent purchase; drove the car with his brother,
Coffey, and the iPads after the fraudulent purchase; and lied to police when
questioned about the iPads. This is a reasonable view of the testimony and
evidence presented at the hearing. See Almedina, 686 F.3d at 1315. On this
record, the district court did not clearly err in finding that Ricardo participated in
the scheme, and thus violated Florida law by a preponderance of the evidence.
Third, based on the finding that Ricardo engaged in an illegal scheme with his
brother and Coffey, the court did not err in finding that Ricardo associated with
people engaged in criminal conduct. Therefore, the court did not abuse its
discretion in finding Ricardo violated the terms of his supervised release.
B.
Ricardo next argues the district court imposed a sentence that was
procedurally and substantively unreasonable. “We review the sentence imposed
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upon the revocation of supervised release for reasonableness.” Velasquez
Velasquez, 524 F.3d at 1252. We first review whether the district court made
procedural errors in sentencing the defendant and then review “whether the
sentence is substantively reasonable under the totality of the circumstances.”
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Two procedural
requirements of sentencing are that the district court “must properly calculate the
Guidelines range and include an explanation for any deviation from the Guidelines
range.” United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008) (quotation
omitted and alteration adopted). We review a procedural-error argument raised for
the first time on appeal for plain error. United States v. Vandergrift, 754 F.3d
1303, 1307 (11th Cir. 2014).
Ricardo’s arguments on procedural reasonableness are (1) the district court
improperly relied on his arrest and did not find by a preponderance of the evidence
that he violated the conditions of his supervised release; and (2) the district court
did not properly explain its decision to sentence him above the guidelines range.
We already concluded the district court did not clearly err in finding violations of
Ricardo’s supervised release. And the district court explained its decision to
sentence Ricardo above the guidelines range—noting the nature and circumstances
of the violation; Ricardo’s history and characteristics; the need for adequate

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deterrence; and the similarity between Ricardo’s underlying offense and these
violations. Thus, the district court did not make a procedural error. 3
Ricardo also argues his sentence is substantively unreasonable. He says the
court improperly relied on its findings that Ricardo violated Florida law and
associated with others engaged in criminal activity. But these findings were not
clearly erroneous, and Ricardo offers no other argument for why it was
unreasonable for the court to rely on them. The court’s explanation—considering
the relevant 3553(a) factors and that Ricardo’s underlying offense was “for the
same type of transaction at the same store”—was not substantively unreasonable
under the totality of the circumstances. See Tome, 611 F.3d at 1379 (holding a 24month sentence was reasonable where, among other considerations, Tome’s
violations of supervised release “involve[d] conduct related to his underlying
conviction”).
AFFIRMED.

3

In sentencing Ricardo, the court considered 18 U.S.C. § 3553(a)(2)(A)—“the need for
the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense.” Section 3583(e) does not include this factor in the
list of § 3553(a) factors it instructs courts to consider when revoking a term of supervised
release. However, Ricardo did not object to procedural reasonableness in the district court. And
we have held the court’s consideration of § 3553(a)(2)(A) at a revocation sentencing hearing is
not plain error. Vandergrift, 754 F.3d at 1308–09.
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