United States v. Thervil Alcinor
663 F. App'x 884
| 11th Cir. | 2016Background
- Thervil Alcinor pled guilty to possession of unauthorized access devices (18 U.S.C. § 1029(a)(2)) and aggravated identity theft (18 U.S.C. § 1028A(a)(1)).
- The district court sentenced Alcinor to a total of 88 months, within the advisory Guidelines range.
- At plea and sentencing Alcinor admitted involvement in a fraud scheme that caused roughly $900,000 in losses and that $45,000 recovered had been returned at that time.
- Alcinor requested a two-level minor-role reduction under U.S.S.G. § 3B1.2(b); he presented no evidence to support the reduction at sentencing.
- The district court attributed the full loss from the scheme to Alcinor under U.S.S.G. § 1B1.3 because he aided and abetted the fraudulent scheme.
- Alcinor challenged the sentence as procedurally and substantively unreasonable; the district court explained it considered the § 3553(a) factors and imposed a within-Guidelines sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alcinor was entitled to a minor-role (two-level) reduction | Alcinor: he was only an aider and abettor and thus less culpable than others | Government/District Court: Alcinor bore burden to prove minor role; he offered no evidence and admitted substantial involvement | Denied — court did not clearly err in refusing the reduction because Alcinor presented no evidence and the record showed significant participation |
| Whether full loss amount may be attributed to Alcinor | Alcinor: only aided/abetted; government failed to present specific reliable evidence attributing entire loss to him | Government/District Court: loss need be a reasonable estimate; guideline attribution includes acts aided and abetted | Affirmed — full loss attributed; Alcinor admitted the scheme caused ~ $900,000 loss and § 1B1.3 permits attribution |
| Whether the 88‑month sentence was procedurally or substantively unreasonable | Alcinor: district court inadequately explained its reasoning and abused discretion by denying a downward variance | Government/District Court: court considered § 3553(a) factors, explained its decision, within-Guidelines sentence is reasonable | Affirmed — no abuse of discretion; court considered arguments and factors and sentence was reasonable |
Key Cases Cited
- United States v. Rodriguez De Varon, 175 F.3d 930 (11th Cir.) (en banc) (framework for role-in-offense adjustments and appellate review for clear error)
- United States v. Martin, 803 F.3d 581 (11th Cir. 2015) (affirming denial of minor-role reduction where record showed significant participation)
- United States v. Woodard, 459 F.3d 1078 (11th Cir. 2006) (loss amount may be a reasonable estimate based on available information)
- United States v. Cavallo, 790 F.3d 1202 (11th Cir. 2015) (appellate review of loss determination for clear error)
- Gall v. United States, 552 U.S. 38 (2007) (standard for reasonableness review of sentences)
- Rita v. United States, 551 U.S. 338 (2007) (district court must provide a reasoned basis showing consideration of arguments)
- United States v. Amedeo, 487 F.3d 823 (11th Cir. 2007) (failure to explicitly discuss mitigating evidence does not automatically render sentence unreasonable when court indicates it considered § 3553(a) factors)
- United States v. Alvarado, 808 F.3d 474 (11th Cir. 2015) (within-Guidelines sentence is an additional indicium of reasonableness)
- United States v. Chitwood, 676 F.3d 971 (11th Cir. 2012) (appellate court may affirm for any reason supported by the record)