USA v. Benjamin Julien Borsani

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11265
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN JULIEN BORSANI,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-cr-20328-FAM-1
____________________
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2 Opinion of the Court 21-11265
Before ROSENBAUM, GRANT, and EDMONDSON, Circuit
Judges.
PER CURIAM:
Benjamin Borsani appeals the 24-month sentence imposed
by the district court after Borsani pleaded guilty to bank fraud and
to mail theft, in violation of 18 U.S.C. §§ 1344 and 1708. No re-
versible error has been shown; we affirm.*
Borsani’s convictions arise from these facts. In March 2016
-- while Borsani was living in a rental house in Miami Beach, Flor-
ida -- a check for over $123,000 arrived in the mail. Although the
check was written out to the “Theodore & Beatrice Foster Irrevo-
cable Life Insurance Trust,” Borsani affixed a stamped endorse-
ment on the back of the check and deposited the check into his own
business checking account.
The trustee of the irrevocable trust filed a civil lawsuit
against Borsani and was awarded a final judgment against Borsani
for over $369,000. Shortly after the civil judgment was entered in
* We note that Borsani completed his term of imprisonment on 12 October
2021 and is now serving his 5-year term of supervised release. Because a suc-
cessful appeal could impact on the remaining portion of Borsani’s term of su-
pervised release, this appeal is not moot.
See Dawson v. Scott, 50 F.3d 884,
886 n.2 (11th Cir. 1995) (concluding in a habeas context that an appeal was not
moot -- even though the defendant had been released from federal custody --
because the defendant’s challenge to the length of his custodial sentence could
alter his supervised-release term).
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21-11265 Opinion of the Court 3
March 2017, Borsani (a dual citizen of Italy and Belgium) fled to
Europe.
In 2018, a federal grand jury returned an indictment charg-
ing Borsani with the offenses underlying this appeal. Borsani was
later arrested in Italy in January 2020 and was extradited to the
United States in September 2020. Borsani pleaded guilty pursuant
to a written plea agreement. Following a sentencing hearing, the
district court sentenced Borsani to 24 months’ imprisonment to be
followed by 5 years’ supervised release.
On appeal, Borsani contends that the district court erred by
denying him a two-level reduction under U.S.S.G. § 3E1.1(a), for
acceptance of responsibility. Borsani says the district court -- in
making its acceptance-of-responsibility determination -- relied im-
permissibly on Borsani’s failure to make voluntary restitution pay-
ments: conduct Borsani says pre-dated the federal indictment in
this case.
We review a district court’s denial of an acceptance-of-re-
sponsibility adjustment for clear error.
See United States v. Mori-
arty, 429 F.3d 1012, 1022 (11th Cir. 2005). Because the “sentencing
judge is in a unique position to evaluate a defendant’s acceptance
of responsibility,” the sentencing judge’s determination “is entitled
to great deference on review.”
Id. Under this deferential standard,
we will set aside a district court’s denial of an acceptance-of-respon-
sibility reduction only if “the facts in the record clearly establish
that the defendant has accepted responsibility.”
Id. at 1022-23.
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4 Opinion of the Court 21-11265
The Sentencing Guidelines allow for a two-level reduction
in the defendant’s offense level if the defendant “clearly demon-
strates acceptance of responsibility for his offense.” U.S.S.G. §
3E1.1(a). “The defendant bears the burden of clearly demonstrat-
ing acceptance of responsibility and must present more than just a
guilty plea.”
United States v. Wade, 458 F.3d 1273, 1279 (11th Cir.
2006) (quotations omitted);
see U.S.S.G. § 3E1.1 comment. (n.3)
(“A defendant who enters a guilty plea is not entitled to an adjust-
ment under this section as a matter of right.”). Although a guilty
plea is considered significant evidence of acceptance of responsibil-
ity, that evidence “may be outweighed by conduct of the defendant
that is inconsistent with such acceptance of responsibility.”
U.S.S.G. § 3E1.1 comment. (n.3).
We have described acceptance of responsibility as “a multi-
faceted concept” that encompasses “the offender’s recognition of
the wrongfulness of his conduct, his remorse for the harmful con-
sequences of that conduct, and his willingness to turn away from
that conduct in the future.”
See United States v. Scroggins, 880
F.2d 1204, 1215 (11th Cir. 1989). Among the factors a sentencing
court may consider in determining whether a defendant has ac-
cepted responsibility is the defendant’s “voluntary payment of res-
titution prior to adjudication of guilt.” U.S.S.G. § 3E1.1 comment.
(n.1). The sentencing court may not, however, deny an ac-
ceptance-of-responsibility reduction based solely on the defend-
ant’s pre-indictment criminal activity.
Wade, 458 F.3d at 1280-81.
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21-11265 Opinion of the Court 5
The record supports adequately the district court’s determi-
nation that Borsani demonstrated no clear acceptance of responsi-
bility for purposes of a reduction under section 3E1.1(a). Contrary
to Borsani’s assertion on appeal, the district court did not rely solely
on Borsani’s pre-indictment conduct in assessing Borsani’s ac-
ceptance of responsibility. The district court was permitted to con-
sider Borsani’s failure to pay restitution to the victim of his fraud.
See U.S.S.G. § 3E1.1 comment. (n.1). And Borsani’s failure to make
any effort at restitution -- despite evidence that he had the means
to do so -- continued well after federal charges were brought
against Borsani in this case. Borsani’s continued refusal to pay back
the money he stole is pertinent conduct inconsistent with showing
acceptance of responsibility.
The district court also made clear that Borsani’s failure to
pay restitution was not the chief reason for the district court’s de-
cision. Instead, the district court explained that Borsani’s de-
meanor and attitude during the sentencing hearing contributed to
the district court’s determination that Borsani had not accepted re-
sponsibility for his offenses. During the sentencing hearing,
Borsani blamed others -- including the fraud victim and the bank --
for Borsani’s decision not to pay restitution. Borsani also faulted
the victim for not making adequate efforts to enforce the civil judg-
ment against Borsani when Borsani was in Brussels. Borsani indi-
cated further that he refused to pay restitution in part because the
victim sought treble damages against him in the related civil suit
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6 Opinion of the Court 21-11265
and because the victim had already received a $500,000 settlement
payment from the bank.
Nothing in the record demonstrates clearly that Borsani
showed remorse for the harm that he caused or recognized fully
the wrongfulness of his conduct. The district court committed no
clear error in determining that Borsani failed to accept responsibil-
ity for his offenses and was, thus, unentitled to a two-level reduc-
tion under section 3E1.1(a).
AFFIRMED.
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