US v. Martin Kalchstein, No. 09-4923 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4923 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARTIN KALCHSTEIN, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:09-cr-00057-FDW-1) Submitted: June 28, 2010 Decided: July 21, 2010 Before DUNCAN, AGEE, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Matthew Collin Joseph, Charlotte, North Carolina, for Appellant. Edward R. Ryan, United States Attorney, Charlotte, North Carolina; Lanny A. Breuer, Assistant Attorney General, Roanoke, Virginia; Ellen R. Meltzer, Patrick M. Donley, Peter B. Loewenberg, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Martin Kalchstein pled guilty to failure to surrender for service of the sentence imposed in United States v. Kalchstein, No. 3:06-cr-00151-FDW-6 (W.D.N.C. Nov. 7, 2008), * in violation of 18 U.S.C. § 3146(a)(2) (2006), and court, in violation of 18 U.S.C. § 401(3) (2006). court sentenced Kalchstein to contempt of The district seventy-two months of imprisonment, an upward variance of more than five times the top of the advisory Kalchstein greater sentencing contends than that necessary § 3553(a) (2006). guidelines his to sentence serve the range. is On appeal, unreasonable purposes of 18 and U.S.C. Finding no reversible error, we affirm. We review a sentence, whether inside, just outside, or significantly outside the abuse-of-discretion standard. 38, 41 (2007). [g]uidelines range, under Gall v. United States, 552 U.S. This review requires consideration of both the procedural and substantive reasonableness of a sentence. 51. an Id. at Procedural reasonableness evaluates the method used to determine a defendant s sentence. United States v. Mendoza- Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). assess whether the district court * properly This court must calculated the Kalchstein s underlying convictions were for conspiracy to defraud the United States and two counts of wire fraud. 2 advisory guidelines range, considered the factors set forth in § 3553(a), analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. Gall, 552 U.S. at 49-50; see United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) ( [A]n individualized explanation must accompany every sentence. ); United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). If there is no procedural error, the appellate court reviews the substantive tak[ing] into including the range. account extent reasonableness the of totality any variance of of the the from sentence, circumstances, the [g]uidelines United States v. Morace, 594 F.3d 340, 346 (4th Cir. 2010) (internal quotation marks and citation omitted). Where, as here, the district court decides that a sentence outside the advisory range is appropriate, [the court] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. Id. (quoting Gall, 552 U.S. at 50). advisory range should be supported justification than a minor one. at 50). In consider the reviewing extent of a A major departure from the variance the by a more significant Id. (quoting Gall, 552 U.S. sentence, deviation, but this must court give may due deference to the district court s decision that the § 3553(a) 3 factors, on a whole, justify the extent of the variance. Gall, 552 U.S. at 51. With Kalchstein s these standards and sentence in that substantively reasonable. find mind, it we is have reviewed procedurally and Kalchstein asserts that the district court committed procedural error in finding that he planned to flee well before he was required to report to serve his sentence and intentionally committed fraud in the process. Our review of the record leads us to conclude that a preponderance of the evidence supports the district court s conclusions. See United States v. Dean, 604 F.3d 169, 173 (4th Cir. 2010) ( Sentencing judges may find facts relevant to determining a [g]uidelines range by a preponderance of the evidence . . . . ) (internal quotation marks and citation omitted). Kalchstein sentence necessary imposed to substantively court s also by serve asserts the the district purposes unreasonable. consideration of that He his of the court above-guidelines was § 3553(a) contends remorse that during greater and than therefore the district the original sentencing proceedings was irrelevant to the selection of the sentence imposed in this case. We find, however, that the district court properly considered the lenient sentence imposed for the underlying convictions, Kalchstein s lack of remorse, and his repeated deceptive and manipulative conduct in making 4 the premeditated sentence. decision to flee to avoid serving that See United States v. Douglas, 569 F.3d 523, 528 (5th Cir. 2009) (finding no error in sentencing [defendant] to an above-range non-[g]uideline[s] sentence based on its assessment of the § 3553(a) defendant lacked factors, remorse including for his its finding that the United States v. crime ); Verkhoglyad, 516 F.3d 122, 130 (2d Cir. 2008) (finding no abuse of discretion where court considered fact that defendant had repeatedly betrayed the trust reflected in [prior] lenient sentences when sentencing defendant for violating conditions of his probation). Thus, we find no abuse of discretion in the district decision court s to impose a sentence significantly above the advisory guidelines range. Accordingly, we affirm the district court s judgment. We deny Kalchstein s motion to file a pro se supplemental brief and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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