USA v. Nicholas Barbati

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 21, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 10-15970, 10-15971 &10-15972
Non-Argument Calendar
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D.C. Docket Nos. 6:10-cr-00100-ACC-GJK-1, 6:10-cr-00254-ACC-GJK-1,
6:10-cr-00252-ACC-GJK-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
NICHOLAS BARBATI,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeals from the United States District Court
for the Middle District of Florida
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(June 21, 2012)
Before TJOFLAT, EDMONDSON and PRYOR, Circuit Judges.
PER CURIAM:

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Nicholas Barbati appeals his sentence of 48 months of imprisonment
following his guilty pleas to knowingly filing a false claim with the Internal
Revenue Service, 18 U.S.C. § 287, knowingly and intentionally conveying false
information of an impending threat and hoax, id. § 1038, and knowingly and
willfully communicating a false distress message, 14 U.S.C. § 88(c). Barbati
argues that his sentence is procedurally and substantively unreasonable. We
affirm.
Barbati is a serial hoaxer. He pleaded guilty to filing 20 false federal tax
returns seeking refunds of more than $100,000 for prostitutes that he allegedly
employed in an internet escort service; misrepresenting himself as an officer in the
U.S. Coast Guard in making a false threat about the space shuttle 45 minutes
before its scheduled launch; and reporting falsely to the Coast Guard that he was
on a yacht that was “taking on water” off the coast of an island. Barbati’s latter
two crimes cost the Coast Guard more than $110,000, but that amount does not
account for the cost and inconvenience created by Barbati’s 584 other false reports
to the Coast Guard, including a bomb threat, or his telephone calls to emergency
operators in which he reported plans to “kill his baby” and “recreate the Virginia
Tech massacre.”
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The district court did not abuse its discretion. The district court considered
Barbati’s request for a sentence at the low end of the advisory range because of
childhood abuse and his cooperation with the government. But the district court
reasonably determined that an upward variance to 48 months of imprisonment was
required because a sentence within Barbati’s advisory guideline range of 24 to 30
months “would not provide just punishment or an adequate deterrence” given the
amount of time, money, and manpower expended to resolve his false reports.
Barbati argues that the district court failed to account for his cooperation or the
prompt disposition of his charges, but Barbati received a three-level reduction of
his adjusted offense level for accepting responsibility and providing assistance to
law enforcement. See United States Sentencing Guidelines Manual § 3E1.1 (Nov.
2010). Barbati’s sentence is reasonable.
Barbati’s sentence is AFFIRMED.
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