US v. Juan Llama

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:05-cr-00400-FDW-4 Copies to all parties and the district court/agency. [998825547].. [11-4053]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4053

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN LUIS LLAMAS,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
District Judge. (3:05-cr-00400-FDW-4)

Argued:

January 27, 2012

Decided:

April 4, 2012

Before MOTZ, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Michael Alan Rotker, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
ON BRIEF: Claire J. Rauscher,
Executive Director, Allison Wexler, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Asheville, North Carolina; Kevin Tate,
Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant.
Lanny A.
Breuer, Assistant Attorney General, Greg D. Andres, Acting
Deputy Assistant Attorney General, Ellen R. Meltzer, Patrick M.

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Donley, Peter B. Loewenberg, UNITED
JUSTICE, Washington, D.C., for Appellee.

STATES

DEPARTMENT

OF

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Juan
remand

Luis

Llamas

appeals

for

resentencing.

procedurally

unreasonable

his

explanation

incorporated

He

sentence
contends

because
by

his

the

reference

imposed

sentence

district

its

following

analysis

is

court’s
of

the

§ 3553(a) factors from the original sentencing hearing, and he
contends the sentence is substantively unreasonable because it
is greater than necessary under the § 3553(a) factors.

Finding

no error, we affirm.

I.
The facts of this case are well known to the parties and
the Court, and are recounted in greater detail in the prior
appeal. See United States v. Llamas, 599 F.3d 381, 383-85 (4th
Cir. 2010). We therefore present only a brief summary.
Llamas
sweepstakes
sixteen

call

participated
scheme

in

operating

centers

used

an
in

the

elaborate
Costa

same

Rica.
basic

telemarketing
Approximately
technique,

but

functioned independently of each other. Llamas worked at one of
the

call

centers,

working

his

way

up

from

a

translator

and

security guard to a “room boss” or “office manager.” Id. at 384.
After working at the call center for approximately nine months,
Llamas withdrew from the scheme and returned to his home in
California.
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As a result of his conduct, Llamas was named in a multidefendant indictment in the Western District of North Carolina.
He pleaded guilty to one count of conspiracy to defraud the
United States, in contravention of 18 U.S.C. § 371; forty-two
counts of wire fraud, in violation of 18 U.S.C. § 1343; one
count of conspiracy to commit money laundering, in violation of
18 U.S.C. § 1956(h); and nineteen counts of money laundering, in
violation of 18 U.S.C. § 1956(a)(1). 599 F.3d at 385.
Although Llamas’ presentence investigation report (“PSR”)
reflected a base offense level of seven, numerous adjustments
for

offense-specific

characteristics

resulted

in

an

adjusted

offense level of thirty-five. 1 At his first sentencing hearing,
Llamas objected to imposition of the “vulnerable victim” and the
three-level

“aggravating

role”

increases.

The

district

court

considered the parties’ arguments regarding the appropriateness
of the adjustments, and found that both should be imposed. The
1

The PSR recommended a sixteen-level increase based on the
$1.1 million loss attributed to the call center during the
period Llamas worked there (U.S.S.G. § 2B1.1(b)(1)(I)); a sixlevel increase based on there being approximately five hundred
victims (§ 2B1.1(b)(2)(C)); a two-level increase because the
conspirators misrepresented they were acting on behalf of a
government agency (§ 2B1.1(b)(8)); a two-level increase because
a substantial amount of the fraud occurred outside the United
States (§ 2B1.1(b)(9)); a three-level increase based on Llamas’
managerial or supervisory role in the offense (§ 3B1.1(b)(1)); a
two-level increase because the majority of the scheme’s victims
were unusually vulnerable (§ 3A1.1(b)(1)); and a three-level
reduction for acceptance of responsibility (§ 3E1.1)).

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court then calculated Llamas’ advisory Guidelines range to be
151 to 188 months’ imprisonment, and imposed a below-Guidelines
sentence

of

132

months.

It

also

ordered

$4.27

million

restitution, relying on the losses caused by not only the call
center where Llamas worked, but also the other fifteen Costa
Rican call centers. 599 F.3d at 385-87.
In

the

initial

appeal,

Llamas

did

not

challenge

his

conviction, but did raise three issues regarding his sentence.
He asserted the district court erred in applying the vulnerable
victim adjustment; applying the aggravating role adjustment; and
improperly calculating the amount of loss for which he could be
held responsible in the restitution order. Id. at 387. We held
“that
victim

the

[district]

adjustment

court’s

was

application

procedurally

of

the

[un]reasonable”

vulnerable
given

that

the court “failed to provide a sufficient explanation of its
finding

that

unusually

Llamas

should

vulnerable.”

have

Id.

at

known

388-89.

that
But

his
we

victims

held

that

were
“the

district court did not clearly err in . . . find[ing] that
Llamas

was

a

supervisor

of

the

[call

center’s]

employees,

rendering the [aggravating role] adjustment appropriate.” Id. at
389-90.

Lastly,

district

court

we

held—as

“abused

its

the

Government

discretion

with

conceded—that
respect

to

the
the

restitution order” because the Mandatory Victims Restitution Act
of 1996 only permits a defendant to be liable for restitution
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for losses “caused by the offense,” i.e., losses attributable to
the

one

call

center’s

activity

as

opposed

to

the

losses

attributable to all sixteen call centers. Id. at 390-91. For
these reasons, we affirmed Llamas’ sentence in part, vacated it
in part, and remanded “for such other and further proceedings as
may be appropriate.” Id. at 391.
On

remand,

the

parties

stipulated

as

to

the

amount

of

restitution that should be ordered, but once again disagreed as
to the proper calculation of the Guidelines range, as well as to
an

appropriate

district

court

sentence
heard

under

the

the

parties

§

3553(a)

regarding

factors. 2

their

view

of

The
an

appropriate sentence under the § 3553(a) factors. As discussed
in greater detail below, throughout those arguments, the court
engaged

the

parties

in

a

discussion

of

their

reasoning

and

support for their positions. At the conclusion of the hearing,
the district court imposed a below-Guidelines sentence of 126
months’ imprisonment and ordered $1,685,252.46 restitution. In
so doing, the court stated:
The Court now is to the point of considering the
sentencing factors as they apply specifically to Mr.
Llamas’
case.
The
Court
did
consider
all
the
2

Because Llamas does not challenge his Guidelines
calculation, we do not need to address that stage of the
resentencing.
The
district
court’s
recalculation
of
the
Guidelines range yielded a term of 151 to 188 months’
imprisonment.

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sentencing factors in December of 2008, particularly
starting on line 3 of page 161 of the transcript of
that hearing, which is Document 312 on the record.
The Court readopts all its analysis of the
sentencing factors that it did at that time, and
reapplies all those analysis as if the Court were
restating it today.
The Court does want to supplement its analysis,
though, as the parties recall, the Court did [vary]
downwardly 19 months because the Court was trying to
avoid a disparate sentence the Court believes was
occurring between [a co-defendant] and Mr. Llamas. The
Court once again readopts that 19-month variance.
The Court also wants to add that it has
considered the sentencing factors of restitution which
is set forth at [§ 3553(a)(7)].
[The court then explained its earlier error as to
restitution, and imposed a different amount. It
continued that it] believes a modest addition to the
variance is appropriate in this case.
So the Court varied last time to 19 months. The
Court believes a 25-month variance is appropriate in
this case, so it adds in the sentencing factor of
restitution,
which
the
Court
had
miscalculated
previously.
With that said, the Court wants to emphasize it
has considered all of the sentencing factors set forth
in Section 3553(a). It has readopted its analysis of
the discussion of the sentencing factors from the
prior sentencing hearing . . . . It has supplemented
its analysis of sentencing factors today. It is now
ready to state a sentence it believes is sufficient
but not greater than necessary to accomplish the goals
of sentencing.
Llamas

noted

a

timely

appeal,

and

we

have

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

7

jurisdiction

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II.
In

this

appeal,

Llamas

challenges

the

procedural

and

substantive reasonableness of his sentence, both of which we
review under the deferential abuse of discretion standard. See
Gall

v.

United

States,

552

U.S.

38,

51

(2007)(“[A]ppellate

court[s] must review the [procedural] . . . . [and] substantive
reasonableness
discretion

of

the

standard.”).

sentence
We

imposed
required

are

under
to

an

abuse-of-

consider

first

“whether the district court committed a significant procedural
error in imposing the sentence under § 3553. If no procedural
error was committed, [we] can only vacate a sentence if it was
substantively

unreasonable

in

light

of

all

relevant

facts.”

United States v. Heath, 559 F.3d 263, 266 (4th Cir. 2009)(citing
United States v. Curry, 523 F.3d 436, 439 (4th Cir. 2008)).

A.
Llamas
his

first

sentence,

incorporating
original

challenges

asserting
by

that

reference

sentencing

the

procedural

the

the

proceeding

§

reasonableness

district
3553(a)

rather

than

court

analysis

of

erred

by

from

the

conducting

a

new

analysis. He contends the district court’s method ignored the
arguments he raised at the resentencing hearing, which included
new

information

himself

and

his

related

to

a

co-defendants.
8

sentencing
He

argues

disparity
that

the

between
district

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court’s statements at the original sentencing “cannot reflect
consideration of [his] arguments at resentencing.” In addition,
Llamas claims that the rationale the district court provided in
the original sentencing was flawed because it was “unmoored from
§

3553(a)”

and

relied

only

on

certain

unfavorable

§

3553(a)

factors while overlooking those that weighed in his favor.
A district court commits a procedural error in sentencing
if it “fail[s] to consider the § 3553(a) factors, select[s] a
sentence

based

on

clearly

erroneous

facts,

or

fail[s]

to

adequately explain the chosen sentence—including an explanation
for any deviation from the Guidelines range.” United States v.
Savillon-Matute,

636

F.3d

119,

123

(4th

Cir.

2011)(internal

quotation marks and citations omitted). As is evident from the
recitation above, the district court’s statements at the time it
announced Llamas’ sentence were limited, relying largely on the
reincorporation of its prior comments. However, when considered
in its entirety, the resentencing hearing demonstrates that the
district court carefully considered each of Llamas’ arguments
and

we

therefore

cannot

say

that

the

court’s

statements

at

sentencing constitute a reversible procedural error.
Llamas’

argument

that

the

district

court

erred

by

incorporating its comments from the earlier proceeding centers
on

his

during

belief

that

resentencing.

the
But

district
the

court

record
9

ignored

belies

his

that

arguments

contention.

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Paramount is the fact that the district court imposed—for the
second time—a below-Guidelines sentence, thus indicating that it
agreed

with

Llamas

that

the

§

3553(a)

factors

warranted

a

measure of additional leniency in his sentence. 3 In fact, at the
resentencing,

the

district

court

granted

a

below-guidelines

variance of six months more than at the first sentencing.
Moreover,

the

district

court

was

clearly

familiar

with

Llamas and the original proceeding, having not only conducted
the original sentencing hearing, but also indicating that the
judge had re-read the transcript from the original proceeding
and

referring

to

specific

parts

of

it

during

re-sentencing.

Furthermore, the court engaged in frequent exchanges with Llamas
throughout the resentencing hearing, clarifying, contradicting,
and questioning the arguments in such a manner that it is clear

3

Specifically, at the original sentencing hearing, the
district court stated that it had “considered all the sentencing
factors set forth in 3553(a),” found Llamas’ conduct to be
“egregious” and part of a “very sophisticated operation . . .
targeting victims in the United States, some of whom were
vulnerable in age and mental acuity,” and that the “extent of
the victimization is extraordinary.” J.A. 474-75. In addition,
the court noted several of the § 3553(a) factors weighed in
Llamas’ favor, including Llamas’ lack of a relevant criminal
history record, his “great success in rehabilitation,” his
contribution to society except for “this grievous deviation,”
the lack of a need to deter others, and the need to avoid
unwarranted sentencing disparities. J.A. 475-76.

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he was hearing and considering Llamas’ arguments. 4 For example,
during

Llamas’

argument

regarding

sentence

disparities

for

individuals convicted of fraud, the district court questioned
Llamas, “Where do those statistics come from because they seem
to be [in]consistent with the Sentencing Guidelines?” J.A. 638.
This

query

not

only

provided

Llamas

with

an

opportunity

to

discuss the issue in greater detail, but also indicates that, in
fact, the court was listening to and considering his arguments.
The record reflects that throughout the resentencing hearing,
the district court remained attuned to Llamas’ arguments and how
they related to the § 3553(a) factors and the offense at issue.
Before resentencing Llamas, the district court specifically
indicated

that

it

had

once

again

“considered

all

of

the

sentencing factors set forth in Section 3553(a).” J.A. 650-51.
And

in

addition

specifically

to

to
its

all

of

detailed

the

above,

explanation

the
in

court

referred

Llamas’

previous

sentencing hearing and reincorporated the rationale set forth
therein for purposes of explaining the reasons for the sentence
it was imposing. The court also supplemented that analysis with

4

For example, the district court corrected Llamas’ factual
statement at one point, J.A. 626, discussed the Bernie Madoff
case as it relates to fraud sentences, J.A. 637-39 and 646, and
gave counsel the opportunity “to reargue the sentencing factors
[at resentencing] and argue for continuation of a the variance.”
(J.A. 627.)

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additional

Date Filed: 04/04/2012

consideration

of

Page: 12 of 14

§

3553(a)(7)(regarding

restitution), and found that this factor warranted an additional
downward variance. The record therefore reflects that where the
district

court

believed

some

new

consideration

should

affect

Llamas’ resentencing it stated those reasons on the record and
acted accordingly.
Lastly, contrary to Llamas’ argument, the district court’s
earlier

explanation

of

the

reasons

for

its

sentence

was

sufficiently tethered to the § 3553(a) factors to permit review
of the reasonableness of the sentence. As we have frequently
indicated, a sentencing court need not “robotically tick through
§ 3553(a)’s every subsection,” United States v. Johnson, 445
F.3d 339, 345 (4th Cir. 2006), but simply must “set forth enough
to

satisfy

the

appellate

court

that

[it]

has

considered

the

parties’ arguments and has a reasoned basis for exercising [its]
own legal decisionmaking authority,” United States v. DiosdadoStar, 630 F.3d 359, 364 (4th Cir. 2011)(quoting United States v.
Rita, 551 U.S. 338, 356 (2007))(alterations in original).
As a whole, we cannot say that the district court failed to
consider the § 3553(a) factors when sentencing Llamas, nor did
it fail to provide a sufficient explanation for the sentence it
imposed. Therefore we find no merit in Llamas’ argument that his
sentence was procedurally unreasonable.

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B.
Llamas also contends that even though his sentence is below
the advisory Guidelines range, it is still higher than necessary
to satisfy the § 3553(a) factors given the undisputed mitigating
circumstances of Llamas’ background and rehabilitation. In sum,
Llamas

asserts

“believed

it

the

was

district

court

‘necessary’

to

failed

impose

to

a

explain

126-month

why

it

sentence

. . . . ”
In reviewing substantive reasonableness, we “examine[] the
totality

of

the

circumstances

to

see

whether

the

sentencing

court abused its discretion in concluding that the sentence it
chose satisfied the standards set forth in § 3553(a).” United
States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). We
“must defer to the trial court and can reverse a sentence only
if it is unreasonable, even if the sentence would not have been
the

choice

of

the

appellate

court.”

Heath,

559

F.3d

at

266

(citations and emphasis omitted). Importantly, we recently held
that a below-Guidelines sentence is entitled to a presumption of
reasonableness against a defendant’s claim that the length of
the sentence is too long. United States v. Susi, No. 11-4041,
slip op. at 19 (4th Cir. March 21, 2012). While that presumption
can be rebutted, we readily conclude from the record that Llamas
has

not

done

so

in

this

case.

Llamas’

arguments

on

appeal

reiterate the positions he took during the sentencing hearing.
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district

determining

court
the

Date Filed: 04/04/2012

appropriately

extent

to

which

Page: 14 of 14

exercised
those

its

discretion

positions

supported

in
a

variance. “That the court did not agree with [Llamas] as to the
value, or relative weight, to give each factor and thus did not
sentence [him] to as low a sentence as he desired does not in
itself demonstrate an abuse of the court’s discretion.” Id. at
20. Accordingly, we hold that Llamas’ sentence is substantively
reasonable.

III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED

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