United States of America v.  ALFREDO HOMES SUSI, a/k/a Freddie

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-4041 
ALFREDO HOMES SUSI, a/k/a
Freddie,
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Frank D. Whitney, District Judge.
(3:07-cr-00119-FDW-4)
Argued: January 24, 2012
Decided: March 21, 2012
Before WILKINSON, DUNCAN, and AGEE,
Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Wilkinson and Judge Duncan concurred.
COUNSEL
ARGUED: Michael David Gelety, MICHAEL D. GELETY
ATTORNEY AT LAW, Fort Lauderdale, Florida, for Appel-
lant. Michael Alan Rotker, UNITED STATES DEPART-

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MENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Lanny Breuer, Assistant Attorney General, Greg D.
Andres, Acting Deputy Assistant Attorney General, Ellen R.
Meltzer, Patrick M. Donley, Peter B. Loewenberg, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
OPINION
AGEE, Circuit Judge:
Alfredo Homes Susi appeals the sentence imposed follow-
ing remand for resentencing. In an earlier appeal, we affirmed
Susi’s convictions on one count of conspiracy to defraud, in
violation of 18 U.S.C. § 371, and multiple counts of aiding
and abetting wire fraud, in violation of 18 U.S.C. § 1343.
United States v. Susi ("Susi I"), 378 F. App’x 277, 288 (4th
Cir. 2010) (per curiam) (unpublished). However, we "va-
cate[d] Susi’s sentence, including the order of restitution, and
remand[ed] the case for resentencing consistent with [the]
opinion." Id. After resentencing, Susi now raises the follow-
ing challenges to his new sentence: (1) the district court erred
in not recalculating his recommended Sentencing Guidelines
range as part of the resentencing; (2) the sentence is substan-
tively unreasonable because the district court imposed the
sentence based on the impermissible factor that Susi exercised
his right to trial; and (3) the sentence is procedurally and sub-
stantively unreasonable because the district court failed to
provide an individualized and adequate explanation for the
sentence and did not properly weigh the 18 U.S.C. § 3553(a)
factors. For the reasons that follow, we affirm the judgment
of the district court.
I.
Susi’s convictions arose from his participation in a telemar-
keting sweepstakes scheme in Costa Rica. Susi worked at one
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of the approximately sixteen call centers operating in Costa
Rica that functioned independently but employed the same
basic technique. We described the criminal scheme in greater
detail in our prior opinion, and do not need to reiterate it here.
Susi I, 378 F. App’x at 280. Although many of the other call
center operatives entered into plea agreements, Susi pleaded
not guilty to the offenses with which he was charged. The
case went to trial and Susi was convicted by a jury.
The pre-sentence report ("PSR") determined that the actual
loss attributable to the call center where Susi worked for the
period of time he worked there was approximately $760,000.
Susi did not object to this computation. And although Susi
initially objected to the PSR’s Sentencing Guidelines calcula-
tion of an advisory Guidelines range of 168 to 210 months’
imprisonment, he later withdrew those objections. Instead, he
argued for a variance sentence based on his limited role in the
conspiracy. The district court imposed a within Guidelines
sentence of 180 months’ imprisonment for each count of aid-
ing and abetting wire fraud and 60 months’ imprisonment for
the conspiracy offense, each to be served concurrently. The
district court also ordered restitution in the amount of $4.2
million, based on an estimated loss amount resulting from all
sixteen call centers.
On appeal, we affirmed Susi’s convictions, but found the
district court erred with respect to Susi’s sentence. Consistent
with his prior withdrawal of objections to the Sentencing
Guidelines range calculation, Susi did not raise any issue
related to the calculation of the Sentencing Guidelines range.
Instead, he asserted the district court erred in holding Susi
responsible for a conspiracy involving all sixteen call centers
that resulted in losses of $4.2 million because the only evi-
dence in the record related to Susi’s participation in one call
center. We observed that although the district court recog-
nized Susi only worked for one call center and was "directly
responsible for a small portion of that," it also had stated in
its summary of the nature and scope of Susi’s offense that
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"this fraud involved million and millions of dollars," referring
to the loss attributable to the operation of all sixteen call cen-
ters rather than just the one where Susi worked. Id. at 286-87
(citation omitted). Accordingly, we held "the district court
abused its discretion by basing Susi’s sentence on the clearly
erroneous understanding that the fraud of which Susi was
convicted resulted in $4.2 million in losses. This is true not-
withstanding the fact that the sentence was within the prop-
erly calculated advisory Guidelines range . . . ." Id. at 287.
The district court’s error thus affected its assessment of the
§ 3553(a) factors, but "[i]t also follow[ed] that the district
court abused its discretion by ordering that Susi pay $4.2 mil-
lion in restitution." Id. As we explained:
Susi was charged with and convicted of participating
in a conspiracy involving only one call center, and
not of a conspiracy involving all sixteen Costa Rican
call centers. Thus the restitution order in this case
should also have been "limited to the losses attribut-
able" to [that one] call center conspiracy.
Id. at 288. Accordingly, we "vacate[d] Susi’s sentence,
including the order of restitution, and remand[ed] the case for
resentencing consistent with [our] opinion." Id.
On remand, Susi filed objections to the supplemented PSR,
challenging numerous components of the Sentencing Guide-
lines calculation, none of which had changed from the origi-
nal PSR Guidelines calculation. He also filed materials in
support of a motion for a downward departure or variance,
alleging he had shown substantial assistance to Florida law
enforcement related to an unrelated ongoing state drug traf-
ficking investigation and prosecution.
The district court heard Susi’s arguments at the outset of
the resentencing hearing, expressing concern whether it could
"reopen" the Guidelines in light of the limited scope of
remand and this Court’s conclusion that the Guidelines had
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been properly calculated. After hearing the parties’ argu-
ments, the district court concluded that it could not recalculate
the Guidelines because the "law of the case" doctrine and
mandate rule precluded it from doing so given that our prior
opinion stated that the Guidelines range was proper and resen-
tencing was based on an error in the § 3553(a) and restitution
analyses. (J.A. 128.)
The parties then argued as to what a proper sentence would
be in light of the § 3553(a) factors. Susi’s arguments centered
on the following considerations, which he believed supported
a downward variance: his early cooperation and acceptance of
responsibility; his assistance in the Florida state prosecution;
his exceptional remorse, as demonstrated by a written and in-
court apology; the disparity of sentences between Susi and
other conspirators, particularly the disparity between Susi and
conspirators who did not exercise their constitutional right to
go to trial; credit for time he had been incarcerated for civil
contempt given that he had received an obstruction of justice
Guidelines enhancement factoring that "contempt" into the
calculation; his relatively small role in the conspiracy; and his
repatriation of $1.1 million in restitution to the Government.
The district court imposed a below-Guidelines sentence of
160 months’ imprisonment for each count of aiding and abet-
ting wire fraud, and sixty months’ imprisonment for the con-
spiracy, to run concurrently. In so doing, the court
"considered all of the sentencing factors," and "highlighted a
few of the sentencing factors that it [thought were] particu-
larly important in this case[,]" including the nature and cir-
cumstances of the offense, the seriousness of the offense, and
the need for general deterrence. (J.A. 163.) The court specifi-
cally rejected Susi’s arguments that he was entitled to a down-
ward variance based on exceptional remorse, early
cooperation, or in order to avoid an unwarranted sentencing
disparity. But it did indicate that Susi’s cooperation in the
Florida drug trafficking offense and his repatriation of $1.1
million to the United States warranted a moderate downward
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variance, and that Susi’s showing of remorse would also "im-
pact his sentence." (J.A. 156.) Lastly, the district court
ordered restitution in the amount of $1,105,000.
Susi noted a timely appeal, and we have jurisdiction pursu-
ant to 18 U.S.C. § 3742.
II.
We begin by briefly reiterating the district court’s duty
when sentencing a defendant, and how we review that pro-
cess. "[A] district court should begin all sentencing proceed-
ings by correctly calculating the applicable Guidelines range."
Gall v. United States, 552 U.S. 38, 49 (2007). Once that is
completed, the district court must give "both parties an oppor-
tunity to argue for whatever sentence they deem appropriate"
and the district court "then consider[s] all of the § 3553(a)
factors to determine whether they support the sentence
requested by a party. Id. at 49-50.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Id. at 51. In conducting that
review, the Court first
ensure[s] that the district court committed no signifi-
cant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treat-
ing the Guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explana-
tion for any deviation from the Guidelines range.
Id. If we find no significant procedural error, then we consider
the substantive reasonableness of the sentence imposed, tak-
ing "into account the totality of the circumstances, including
the extent of any variance from the Guidelines range." Id.
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A.
Susi first challenges the district court’s determination that
it could not re-open the Sentencing Guidelines calculation
under the "law of the case" doctrine or mandate rule. Specifi-
cally, the district court observed that "[t]he Fourth Circuit has
determined that the Guidelines were properly calculated and
that Mr. Susi withdrew his objections" to that calculation;
accordingly, "the Fourth Circuit has already decided on the
Guidelines issue for me." (J.A. 80-81.) We review de novo
the district court’s interpretation of the mandate. Volvo Trade-
mark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474,
480 (4th Cir. 2007).
Susi contends that he was entitled to a de novo hearing at
resentencing, notwithstanding his previous withdrawal of any
objections to the Guidelines calculation and his failure to raise
any issue related to the Guidelines calculation on appeal. This
is so, he asserts, because this Court’s remand vacated the sen-
tence in its entirety and thus permitted the district court to
consider the sentence anew, including entertaining any objec-
tions to the calculation of the Guidelines range.
The Government counters that this Court’s remand was
limited to the issues of restitution and the § 3553(a) analysis,
and that it was not necessary to re-examine the Sentencing
Guidelines in order to correct the error in the original sentenc-
ing. Furthermore, it points to Susi’s withdrawal of any objec-
tion to the Guidelines calculation and his failure to raise any
associated error on appeal as evidence that the Guidelines cal-
culation was not in dispute in the original appeal and thus was
not part of this Court’s remand for resentencing.
The mandate rule governs what issues the lower court is
permitted to consider on remand—it is bound to carry out the
mandate of the higher court, but may not reconsider issues the
mandate laid to rest. As we have previously stated:
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Because this mandate rule is merely a specific appli-
cation of the law of the case doctrine, in the absence
of exceptional circumstances, it compels compliance
on remand with the dictates of a superior court and
forecloses relitigation of issues expressly or
impliedly decided by the appellate court. In addition,
the rule forecloses litigation of issues decided by the
district court but foregone on appeal or otherwise
waived, for example because they were not raised in
the district court. . . . However, to the extent that the
mandate of the appellate court instructs or permits
reconsideration of sentencing issues on remand, the
district court may consider the issue de novo, enter-
taining relevant evidence on that issue that it could
have heard at the first hearing.
United States v. Bell, 5 F.3d 64, 66-67 (4th Cir. 1993) (quota-
tion marks, citations, and alterations omitted).
We need not resolve whether the district court erred in con-
cluding that it was barred from reconsidering the Sentencing
Guidelines calculation, because even if we assume that the
district court erred in this respect, that error was harmless
under the facts of this case.
The language of the mandate, although vacating the sen-
tence in its entirety, was limited only to "resentencing consis-
tent with this opinion." Susi I, 378 F. App’x at 288. The
sentencing error identified by this Court dealt with the district
court’s consideration of factors outside the scope of the record
during the § 3553(a) analysis and in calculating the amount of
restitution ordered. In the initial sentencing, the district court
erred in considering as a basis for Susi’s sentence that the
conspiracy entailed sixteen call centers instead of just the one
where Susi worked, and in attributing a $4.2 million loss from
all the call centers to him instead of an amount limited to the
one call center. This error in no way impacted the calculation
of Susi’s Guidelines range.
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Indeed, our prior opinion expressly recognized this bifurca-
tion when it observed that the district court’s decision consti-
tuted reversible error "notwithstanding the fact that the
sentence was within the properly calculated advisory Guide-
lines range, to which Susi withdrew his objections." Id. at
287. Proceedings "consistent with [our] opinion" thus would
in no way require recalculation of an established "properly
calculated advisory Guidelines range." Thus, the Guidelines
calculation was not an issue in the original appeal and review
of that calculation was not expressly governed by the Court’s
holding or mandate in Susi I.
Susi contends that under the Supreme Court’s recent deci-
sion in Pepper v. United States, 131 S. Ct. 1229 (2011), the
district court was required to conduct a de novo resentencing
that included recalculation of the Sentencing Guidelines and
that the court erred in determining that the "law of the case"
precluded its doing so. We do not read Pepper as broadly as
Susi contends. Pepper examined whether the law of the case
doctrine required the district court on resentencing "to adhere
to the original sentencing judge’s decision granting a 40 per-
cent downward departure." Id. at 1250.1 The Supreme Court
held that where an appellate court sets aside a defendant’s
"entire sentence and remand[s] for a de novo resentencing"
pursuant to a general mandate, the district court on resentenc-
ing is not bound by its prior consideration of the case. Id. at
1250-51. This is so, the Court held, because
[a] criminal sentence is a package of sanctions that
the district court utilizes to effectuate its sentencing
intent. Because a district court’s original sentencing
intent may be undermined by altering one portion of
the calculus, an appellate court when reversing one
part of a defendant’s sentence may vacate the entire
1The Supreme Court noted that Pepper had "abandoned any argument
that the mandate itself restricted the District Court from imposing a sub-
stantial assistance departure." Id. at 1250.
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sentence so that, on remand, the trial court can
reconfigure the sentencing plan to satisfy the sen-
tencing factors in 18 U.S.C. § 3553(a).
Id. at 1251 (internal quotation marks, citations, and alterations
omitted).
Nothing in Pepper, however, requires the district court to
reconsider every component of the sentencing decision during
resentencing. Pepper thus supports the conclusion that even if
the district court erred in concluding that the language of Susi
I precluded it from reexamining the Guidelines calculation, it
does not follow that, as Susi would have us hold, the district
court erred in failing to reopen the Guidelines calculation.
For even if the district court erred in believing that it could
not reexamine the Guidelines calculation, the record provides
ample support for why such an error was harmless. See Fed.
R. Crim. P. 52(a) ("Any error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded.");
Puckett v. United States, 129 S. Ct. 1423, 1432 (2009)
(observing that "procedural errors at sentencing . . . are rou-
tinely subject to harmlessness review")); see also United
States v. Chase, 296 F.3d 247, 249 (4th Cir. 2002) (conclud-
ing any error in district court’s application of the mandate rule
was harmless).
The harmlessness of any error is apparent for many rea-
sons. To begin with, Pepper did not eviscerate a sentencing
court’s discretion to decline to consider waived arguments on
remand. Only a handful of courts of appeals have considered
the impact of Pepper, and specifically its impact on the law
of the case doctrine and the principle of waiver. Of these, we
find the Seventh Circuit’s analysis in United States v. Barnes,
660 F.3d 1000 (7th Cir. 2011), persuasive:
At issue, then, is what the Pepper Court intended by
the term "de novo" in the re-sentencing context.
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[Petitioners] interpret the Court’s dicta that general
remand orders "wipe the slate clean" as entitling
them to present any and all new arguments at re-
sentencing—regardless of their relevance to the error
giving rise to the remand.
[N]o court has concluded that Pepper operates to
abolish waiver in the context of re-sentencing. As it
discusses de novo re-sentencing, the Court empha-
sizes a district court’s ability to "effectuate its sen-
tencing intent," id. at 1251, underscoring its concern
that re-sentencing courts should not be bound by
their predecessors or rotely input the Courts of
Appeals’ changes into their original sentencing cal-
culations. Its holding thus stands for the proposition
that general remands render a district court uncon-
strained by any element of the prior sentence. Id.
Allowing a district court to freely balance already
and properly raised arguments to preserve or revise
its sentencing objectives does not equate to carte
blanche for defendants to raise new arguments unre-
lated to the issues raised on appeal. . . .
We, therefore, hold that when a case is generally
remanded to the district court for re-sentencing, the
district court may entertain new arguments as neces-
sary to effectuate its sentencing intent, but it is not
obligated to consider any new evidence or arguments
beyond that relevant to the issues raised on appeal.
Accordingly, the district court did not err by refusing
to consider [the Petitioners’] new arguments as
beyond the scope of remand.
Id. at 1007-08 (footnote omitted). Thus, while Pepper allows
district courts the flexibility to address any component of the
sentencing decision that it must in order to "effectuate its sen-
tencing intent," that decision does not fundamentally alter the
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rule of waiver. Here, it was not necessary to recalculate the
Sentencing Guidelines in order to address the error that was
the cause for the remand, or to tailor an appropriate sentence
taking into consideration § 3553(a)’s full panoply of sentenc-
ing factors. The error requiring resentencing was unrelated to
the Sentencing Guidelines calculation, and the § 3553(a)
assessment is a separate part of the sentencing process, occur-
ring after the Guidelines range is established. Consequently,
an error in this latter stage of sentencing does not implicate
the former stage.2
Apart from these considerations, a district court would be
well within its authority to decline to revisit every sentencing
issue on remand, unless the mandate indicates otherwise or
the interrelationship of sentencing components makes it
advisable to do so. There is no reason to require a district
court to plow through the same arguments, take the same evi-
dence, and make the same findings that it has already made
in the original sentencing where such an effort would serve no
purpose. Such duplication for the sake of duplication bears no
reasonable relationship to the ultimate objective of effectuat-
ing the trial court’s sentencing aims. Nor is there a require-
ment that district courts disregard a prior waiver and entertain
new evidence and arguments where such is not necessary to
effectuate the court’s sentencing intent. For these reasons, we
find the error, if any, harmless.
2Susi does contend that reopening the Sentencing Guidelines was neces-
sary because the Guidelines range reflected the same error the district
court committed with respect to the § 3553(a) analysis and calculation of
restitution, in that the total offense level was set based on too high of a
loss amount and number of victims. Susi’s argument is factually incorrect.
As noted earlier, the PSR’s Guidelines calculation used a loss amount of
$760,000 rather than the $4.2 million improper amount and Susi did not
contest the $760,000 amount at his initial sentencing or the appeal. More-
over, the PSR did not include victims from all sixteen call centers, just
Susi’s center. Susi’s Guidelines calculation was based on the proper con-
siderations, and thus the district court’s unrelated error in the original sen-
tencing proceeding did not in any way alter the proper calculation of the
Guidelines range.
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B.
Susi next contends that his sentence is substantively unrea-
sonable because comments the district court made during sen-
tencing show that the length of his sentence was in part to
punish him for exercising his right to trial. Susi posits that
"the record and circumstances and results make it clear" that
his sentence represents a vindictive punishment for exercising
his right to trial and successfully appealing his first sentence
because the district court referred to the fact that Susi’s deci-
sion to go to trial was unnecessary, imposed a "cost to the tax-
payers," and that he stood out from his co-conspirators as a
result of not cooperating from the outset by pleading guilty.
(Opening Br. 54 (citing J.A. 122, 159).) Because his sentence
is so much higher than "similarly situated" co-conspirators,
Susi asserts the district court unfairly penalized him for exer-
cising his right to trial.
We previously articulated the applicable analysis as fol-
lows:
A defendant’s right to due process requires that there
be no vindictiveness against [him] for having chosen
to exercise [his] constitutional rights. Because
motives are often difficult to prove, the Supreme
Court has determined that, in certain cases in which
action detrimental to the defendant has been taken
after the exercise of a legal right . . . it [is] necessary
to presume an improper vindictive motive. Such a
presumption, however, is only warranted in cases in
which a reasonable likelihood of vindictiveness
exists.
Moreover, a presumption of prosecutorial vindic-
tiveness is generally warranted only in a post-
conviction setting, such as when a defendant suc-
cessfully attacks his conviction on appeal, and then
receives a harsher sentence on retrial.
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United States v. Perry, 335 F.3d 316, 323-24 (4th Cir. 2003)
(internal quotation marks and citations omitted). As applied to
Susi’s case, this due process protection extends not only to his
exercise of the right to appeal, but also the right to go to trial.
See Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)
("[P]unish[ing] a person because he has done what the law
plainly allows him to do is a due process violation of the most
basic sort."); United States v. Olivares, 292 F.3d 196, 198 (4th
Cir. 2002) ("Due process requires that vindictiveness play no
role in resentencing the defendant.").
No presumption of vindictiveness applies to Susi’s sentenc-
ing because his sentence after remand (160 months) was less
than his original sentence (180 months). See United States v.
Kincaid, 964 F.2d 325, 328 (4th Cir. 1992) (holding that the
presumption of vindictiveness only applies when "the new
sentence is actually harsher than that imposed prior to [the]
successful appeal"). Although Susi broadly asserts that the
district court punished him during resentencing for exercising
his right to appeal, he points to nothing specific from the
record to support that claim. Given that Susi received a
below-Guidelines range sentence and the absence of anything
in the record to suggest otherwise, Susi’s claim of vindictive-
ness for successfully appealing his case has no merit.
Susi does point to several portions of the sentencing hear-
ing to support his claim that the district court punished him
for exercising his right to go to trial. Having reviewed the
entirety of the sentencing transcript, we do not agree with
Susi’s contention. Read in context, and as part of the ongoing
and lengthy exchange with both attorneys, the district court’s
references to Susi’s decision to go to trial, rather than plead
guilty, do not indicate that the court was penalizing Susi for
exercising that right. As an initial matter, the specific state-
ments Susi points to do not occur during the court’s explana-
tion of the reasons for the sentence it imposed; rather, they are
located in the court’s dialogue with the attorneys regarding
their arguments. More importantly, the court’s statements
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were made in response to and regarding one of Susi’s primary
arguments in favor of a downward variance.
During the sentencing hearing, Susi asserted that
§ 3553(a)(6) — the need to avoid unwarranted sentencing dis-
parities among defendants with similar records who have been
found guilty of similar conduct — warranted a downward
variance because Susi’s Guidelines range was significantly
higher than the sentences other members, and even leaders, of
the Costa Rican sweepstakes scam had received. Susi also
argued that he had exhibited contrition for his participation in
the offenses through his rehabilitative and cooperative efforts
since his original sentencing, which placed him "if not on a
level with the other co-defendants, . . . certainly . . . in a dif-
ferent posture for this Court to consider when . . . looking at
the disparity question." (J.A. 109-21.) In the context of engag-
ing Susi’s counsel on that question, the district court referred
to Susi exercising his right to a trial and thereby
running up his debt to society . . . causing the gov-
ernment to have to prove its case beyond a reason-
able doubt against him, which [is] his absolute
constitutional right. But there’s a cost to the taxpayer
when he does that, and therefore, his debt to society
goes up when he refuses to admit his guilt.
(J.A. 121-22.) Susi concurred, and the court continued,
"There’s a distinction between someone who pleads guilty
and someone that goes to trial. That doesn’t mean he’s not
remorseful. . . ." (J.A. 122.) Shortly thereafter, the court
stated, "The Supreme Court has said many times and so has
the Fourth Circuit that a defendant who chooses to put the
[government] to its burden is not cooperating to the point that
he should be considered the same as a defendant who admits
his guilt and doesn’t require the government to" meet its bur-
den. (J.A. 124.)
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Taking into consideration Susi’s own arguments in favor of
a variance and the totality of the district court’s statements on
this point, we find that the record does not support Susi’s
claim that the court improperly used his having gone to trial
as a basis for sentencing him. Instead, the court’s statements
reflect the well-recognized principle that defendants who
plead guilty can be given the benefit of that cooperation as
part of their Guidelines calculation and ultimate sentence,
while defendants who exercise their right to a trial have no
entitlement to the same benefit. Flowing from that principle
is the logical conclusion that § 3553(a)(6)’s avoidance of
unwarranted sentencing disparities does not require courts to
sentence similarly individuals who go to trial and those who
plead guilty. They are not similarly situated for sentencing
purposes. E.g., United States v. Perez-Pena, 453 F.3d 236,
243 (4th Cir. 2006) ("[C]omparing the sentences of defen-
dants who helped the Government to those of defendants who
did not . . . is comparing apples and oranges. For this reason,
Congress could not have intended that disparities resulting
from the exercise of prosecutorial discretion could be deter-
mined to be ‘unwarranted.’"); see also United States v. Jeff-
ery, 631 F.3d 669, 679 (4th Cir.), cert. denied, 132 S. Ct. 187
(2011), (recognizing that § 3553(a)(6)’s consideration of sen-
tencing disparities does not reflect that a defendant who goes
to trial should be sentenced similarly to a co-offender who
pled guilty and testified against the defendant and received a
reduced sentence as a result of his cooperation). Here, the dis-
trict court was dialoguing with Susi regarding additional com-
ponents contributing to the disparity in the co-conspirators’
Guidelines ranges and resulting sentences, but it was not
improperly suggesting that Susi’s sentence was to punish him
for exercising his right to go to trial.3 Given the totality of the
3Our conclusion is further supported by the district court’s statements
during its subsequent explanation for the sentence imposed. In discussing
Susi’s disparity argument, the court rejected the notion that Susi should be
compared to the conspirators who pled guilty, and concluded that "he
should be compared to those defendants who were not cooperating and not
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district court’s statements, we conclude that Susi’s sentence
was not improperly based on his decision to go to trial or as
a result of his successful appeal of his original sentence.
C.
Susi lastly contends the district court "did not properly con-
sider nor properly apply the individualized sentencing factors
or [§] 3553." (Opening Br. 40.) Susi’s various assertions boil
down to claiming that had the district court given proper
weight to his arguments, it would have imposed a lower sen-
tence, and that it failed to adequately explain its reasons for
rejecting Susi’s arguments. Thus, he challenges both the pro-
cedural and substantive reasonableness of his sentence.
Having reviewed the sentencing hearing transcript, we con-
clude that the district court did not commit any procedural
errors. The district court allowed the parties considerable time
to argue for what they believed was an appropriate sentence
under the § 3553(a) factors. It is clear from the record that the
court understood each argument Susi was making in favor of
a downward variance and the statement of reasons for the sen-
tence it imposed is twelve pages in the transcript, addressing
both the § 3553(a) factors and Susi’s arguments. The court’s
explanation considered the following: the nature and circum-
stances of Susi’s offense (limiting consideration to the one
call center), the sophistication of the call center, the serious-
ness of the offense, the concern for general deterrence, the
court’s belief that Susi had shown remorse and was not likely
to be a future threat for purposes of specific deterrence. Simi-
larly, the district court noted that Susi’s remorse had not been
assisting the United States . . . . [Susi’s] choosing the wrong pool of defen-
dants to compare himself to." (J.A. 160.) And while the court did conclude
that Susi was entitled to a moderate variance in light of Susi’s assistance
in the unrelated Florida drug trafficking investigation, this constituted a
different type of assistance and cooperation than that exhibited by his
Costa Rican co-conspirators.
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"exceptional" and therefore did not independently warrant a
downward variance, but would still impact his sentence. In
addition, the court observed that Susi’s early cooperation had
been shallow and did not independently justify a variance. It
also noted that Susi had subsequently repatriated approxi-
mately $1.1 million to the United States that would go to the
victims, and that this fact would be considered as a factor for
a "modest variance," as would Susi’s assistance to law
enforcement investigating the Florida drug trafficking investi-
gation.
While the district court did not go into length as to all of
the § 3553(a) factors, it was not required to do so. United
States v. Carter, 564 F.3d 325, 329 (4th Cir. 2009) ("[T]he
district court need not robotically tick through § 3553(a)’s
every subsection.") (internal quotation marks and citation
omitted). Certainly the district court’s explanation for Susi’s
sentence, summarized above, is clearly sufficient to satisfy the
requirement that the court provide an individualized assess-
ment of the § 3553(a) factors and tailored to Susi’s sentence.
It also provides an adequate basis for us to review the reason-
ableness of the sentence imposed. Id. at 329-30 ("[A] talis-
manic recitation of the § 3553(a) factors without application
to the defendant being sentenced does not demonstrate rea-
soned decisionmaking or provide an adequate basis for appel-
late review. . . . [T]he district judge . . . must place on the
record an individualized assessment based on the particular
facts of the case before it. This individualized assessment
need not be elaborate or lengthy, but it must provide a ratio-
nale tailored to the particular case at hand and adequate to
permit meaningful appellate review.") (internal citations and
quotation marks omitted).
Turning to the substantive reasonableness of Susi’s sen-
tence, we must consider whether the totality of the circum-
stances shows that the district court did not abuse its
discretion in sentencing Susi to 160 months’ imprisonment on
the wire fraud counts. We have previously held that "a sen-
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tence located within a correctly calculated guidelines range is
presumptively reasonable." United States v. Abu Ali, 528 F.3d
210, 261 (4th Cir. 2008); see Rita v. United States, 551 U.S.
338, 347 (2007) (holding that "a court of appeals may apply
a presumption of reasonableness to a district court sentence
that reflects a proper application of the Sentencing Guide-
lines"). However, Susi was sentenced to a term of imprison-
ment that was below the recommended Guidelines range of
168 to 210 months’ imprisonment. We have not previously
addressed in a published opinion whether a below-Guidelines
sentence is also entitled to a presumption of reasonableness.
We hold that it is. This conclusion is inherently logical, for if
a challenge to the length of a within-Guidelines sentence is
presumptively reasonable, the length of a below-Guidelines
sentence would even more inherently be substantively reason-
able.4
The appropriateness of adopting this presumption is bol-
stered by the unanimous agreement of the five circuit courts
of appeals to have considered the issue as well. See United
States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011)
("extending the rebuttable presumption of reasonableness to a
below-guideline sentence challenged by the defendant as
unreasonably harsh"); United States v. Breland, 647 F.3d 284,
291 (5th Cir. 2011), vacated and remanded on other grounds
4Prudence dictates that we clarify that this presumption exists when a
defendant challenges the length of his below Guidelines sentence as being
substantively unreasonable. This presumption would not apply where a
defendant challenges the substantive reasonableness on other grounds. In
addition, this presumption of reasonableness would not be applied where
the Government appeals that a district court’s sentence is substantively
unreasonable. See, e.g., Abu Ali, 528 F.3d at 260-61 (applying the usual
Gall analysis when considering the Government’s cross-appeal challeng-
ing the substantive reasonableness of a below-Guidelines term of impris-
onment); see also United States v. Engle, 592 F.3d 495 (4th Cir.), cert.
denied 131 S. Ct. 165 (2010), (applying no presumption when considering
the substantive reasonableness of a sentence of probation when the Guide-
lines included a term of imprisonment).
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by 2012 U.S. LEXIS 766 (Jan. 17, 2012) ("A below-
Guidelines sentence is presumptively reasonable."); United
States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008) ("A sen-
tence within a properly calculated guideline range is presump-
tively reasonable, so it follows that a below-guideline
sentence is also presumptively reasonable against an attack by
a defendant claiming that the sentence is too high."); United
States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008) (stating that
"simple logic compels the conclusion that, if a [Guidelines
sentence] would have been presumptively reasonable in
length, [the] defendant’s task of persuading us that [a] more
lenient sentence . . . is unreasonably long is even more
demanding"); United States v. Canania, 532 F.3d 764, 773
(8th Cir. 2008) ("[A] sentence below or within the Guidelines
range is presumptively reasonable on appeal.").
Having determined that a presumption of reasonableness
applies to the length of Susi’s sentence, we must consider
whether Susi raises any arguments that would rebut the pre-
sumption. We conclude there are none. The district court con-
sidered Susi’s arguments and appropriately exercised its
discretion in rejecting or accepting their impact on determin-
ing an appropriate sentence. That the court did not agree with
Susi as to the value, or relative weight, to give each factor and
thus did not sentence Susi to as low a sentence as he desired
does not in itself demonstrate an abuse of the court’s discre-
tion. Accordingly, we hold that Susi’s sentence is both proce-
durally and substantively reasonable.
III.
Finding no error in the district court’s resentencing of Susi,
we affirm the judgment of the district court.
AFFIRMED
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