USA v. Jerry Alan Bottorff, No. 12-15765 (11th Cir. 2013)

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Case: 12-15765 Date Filed: 09/25/2013 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-15765 Non-Argument Calendar ________________________ D.C. Docket No. 8:11-cr-00269-SDM-AEP-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JERRY ALAN BOTTORFF, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (September 25, 2013) Before MARCUS, MARTIN and KRAVITCH, Circuit Judges. PER CURIAM: Jerry Alan Bottorff appeals his total life sentence for his involvement in a murder-for-hire plot. He was indicted and, without a plea agreement, pleaded Case: 12-15765 Date Filed: 09/25/2013 Page: 2 of 6 guilty to using a facility of interstate commerce in the commission of a murder for hire, in violation of 18 U.S.C. §§ 1958(a) and 2; conspiring to use a facility of interstate commerce in the commission of a murder for hire, also in violation of §§ 1958(a) and 2; and aiding or abetting carrying or using a gun, resulting in death, in violation of §§ 924(c), (c)(1)(A)(iii), (j)(1), and 2. Specifically, Mr. Botorff admitted that he and his now-wife Cristie Botorff, conspired with Michael Garcia and Luis Lopez to have Lopez kill Cristie s then-husband Thomas Lee Sehorne, so that Cristie could collect insurance proceeds. Lopez shot and killed Sehorne on June 7, 2007, and Cristie collected $1 million. Bottorff argues that the district court erred procedurally by considering the 18 U.S.C. § 3553(a) sentencing factors in refusing to depart downward pursuant to the government s substantial assistance motion. He further argues that his sentence is substantively unreasonable. Although the parties read the record differently, our reading indicates that the district court actually granted the government s substantial assistance motion pursuant to United States Sentencing Guidelines (USSG) § 5K1.1, departed downward, then imposed an upward variance. 1 We review the reasonableness of a sentence under an abuse-of-discretion 1 The Statement of Reasons explains: The court granted the government s motion under USSG § 5K1.1. However, on the court s motion, the court varied upward from the advisory guideline sentence after addressing the factors set forth under 18 U.S.C. § 3553(a). A sentence of life is reasonably necessary to achieve the statutory purposes of sentencing. 2 Case: 12-15765 Date Filed: 09/25/2013 Page: 3 of 6 standard. Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007). A defendant challenging his sentence bears the burden of establishing that it is unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Where a defendant raises a sentencing issue for the first time on appeal, plain error review applies. See United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Plain error requires the defendant to show: (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013) (quotation marks omitted). In reviewing the reasonableness of a sentence, we use a two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). First, we ensure that the sentence is procedurally reasonable, meaning that the district court properly calculated the guideline range, treated the guidelines as advisory, considered the § 3553(a) factors, did not select a sentence based on clearly erroneous facts, and adequately explained the chosen sentence. Gall, 552 U.S. at 51, 128 S. Ct. at 597. Second, if we determine that a sentence is procedurally sound, we then examine whether the sentence is substantively reasonable in light of the totality of the circumstances. Id. We review the totality of the facts and circumstances to gauge for substantive error. United States v. Irey, 612 F.3d 1160, 1189 90 (11th Cir. 2010) 3 Case: 12-15765 Date Filed: 09/25/2013 Page: 4 of 6 (en banc). A sentencing court may impose a sentence more severe than the guideline range so long as that sentence is reasonable. United States v. Crawford. 407 F.3d 1174, 1179 (11th Cir. 2005). We may vacate a sentence only if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case. Pugh, 515 F.3d at 1191 (quotation marks omitted). Although statutory mandatory minimums are generally preclusive, the Guidelines allow district courts to impose lower sentences based on certain factors. United States v. Carillo-Ayala, 713 F.3d 82, 88 (11th Cir. 2013). Under USSG § 5K1.1, the government may file a motion informing the court that the defendant provided substantial assistance in the investigation or prosecution of another individual. USSG § 5K1.1. If the government files such a motion, the court may impose a downward departure under the Sentencing Guidelines, and the resulting sentence may fall below the mandatory minimum penalty. Id. Bottorff s sentence was procedurally and substantively reasonable and the district court committed no error, plain or otherwise. First, the district court correctly calculated his original Guideline range and noted the impact of the 4 Case: 12-15765 Date Filed: 09/25/2013 Page: 5 of 6 mandatory minimum of life imprisonment in 18 U.S.C. § 1958.2 The Court then granted the substantial assistance motion, it simply chose to impose an upward variance based on § 3553(a) factors. Thus, the sentence was procedurally reasonable. See Gall, 552 U.S. at 51, 128 S. Ct. at 597. Second, the court indicated that it had considered the parties arguments, the Guidelines, the presentence investigation report (PSI), and the § 3553(a) factors, including the nature of the offenses and the need for deterrence, before imposing a sentence which it considered sufficient but no harsher than necessary. The court noted, among other things, that: (i) Bottorff and his co-defendant contacted a convicted felon to hire a murderer; (ii) Sehorne was shot outside his home and laid in a pool of blood until his child found his body hours later covered with insects; and (iii) the planning extended over a long period of time during which Bottorff could have stopped the events but chose not to do so. Third, the district court s statement of reasons adequately explained its reasons for imposing an upward variance: [A]ssessed under Section 3553(a), the attributes of the offense and these offenders the startling coldness and moral detachment of the Bottorffs as they contemplated and executed this atrocity over many weeks and afterward until apprehension, the necessity for an unalloyed message to those who would contemplate a similar offense, the necessity to protect the community from this species of criminal adventure, and the other reasons stated at the sentencing strongly 2 Indeed, neither party objected at sentencing to the factual content or guidelines calculations in the presentence report or the district court s ultimate sentence. 5 Case: 12-15765 Date Filed: 09/25/2013 Page: 6 of 6 commend the announced sentence, even after careful consideration and re-consideration of the sundry matters to which the defense directs by attention. Finally, Bottorff s life sentence was, in fact, the applicable statutory mandatory minimum penalty for the offenses of conviction. Under these circumstances, Bottorff cannot meet his burden of establishing that the sentence was substantively unreasonable. See Pugh, 515 F.3d at 1191; Talley, 431 F.3d at 788. Upon review of the record and consideration of the parties briefs, the sentence is AFFIRMED. 6

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