# United States v. Alexandre Ovadia

> Court of Appeals for the Eleventh Circuit · November 7, 2025

URL: https://www.frixlaw.com/law-library/cases/11199799

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** November 7, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- noting for Keene statements that district courts should “make clear at the time of pronouncing the sentence that it would reach the same sentence regardless of the Guidelines range”

## Opinion text

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NOT FOR PUBLICATION

In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-14255
Non-Argument Calendar
____________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

ALEXANDRE OVADIA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:24-cr-20164-DPG-1
____________________

Before JORDAN, KIDD, and HULL, Circuit Judges.
PER CURIAM:
After a guilty plea, Alexandre Ovadia appeals his
thirty-month prison sentence on his cyber harassment conviction
under 18 U.S.C. § 2261A(2)(B). Particularly, Ovadia argues that the
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evidence at his sentencing does not support the district court’s
finding that Ovadia used “credible threats of violence.” That
finding made Ovadia ineligible for a two-level reduction to his
offense level under U.S.S.G. § 4C1.1, a provision for offenders with
no criminal history points (the “zero-point offender reduction”).
After careful review, we affirm Ovadia’s sentence because
the district court did not err in finding that Ovadia made credible
threats of violence, thereby rendering him ineligible for the
zero-point offender reduction. Alternatively, any error in not
applying a two-level reduction under § 4C1.1 was harmless because
(1) the district court made a Keene1 statement that indicated he
would have imposed a thirty-month prison sentence even with that
§ 4C1.1 reduction; and (2) Ovadia has not shown his thirty-month
prison sentence was unreasonable under his lowered advisory
guidelines range.2
I. FACTUAL BACKGROUND
From November 2022 to March 2024, Ovadia sent at least
217 threatening emails to various individuals. As Ovadia described
to FBI agents, he sent the emails to combat a freemason-backed
pedophilia ring that had infected the United States government.

1United States v. Keene, 470 F.3d 1347 (11th Cir. 2006).

2As detailed later, the § 4C1.1 reduction would have lowered Ovadia’s
advisory guideline range from 24-30 months imprisonment to 18-24 months
imprisonment.
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Ovadia sent emails to people he knew, including business
associates and family members.
Ovadia’s former business partner, “R.M.,” who lived in
Miami, Florida, was the target of numerous emails. Ovadia
previously resided in Miami, but he sent these emails from Israel
and Colorado.
Ovadia’s emails were unhinged, often consisting of
slur-ridden threats typed in all capital letters with numerous
misspellings or non sequiturs. For example, Ovadia sent one email
to R.M. that referred to R.M. as a homophobic slur and had a
subject line stating, “I AM GOING TO KILL YOU.” Another email
to R.M. stated, “IM GOING TO DRILL HOLES THROUGH
YOUR SKULL” and “IM GOING TO EAT YOUR FACE.”
Several of Ovadia’s emails suggest he knew the locations of
the targets of his threats. First, in one particularly gruesome email
sent to R.M., Ovadia threatened to rape R.M. and referenced
R.M.’s residence in Miami, Florida, by writing, “[R.M.] local miami
gay found in pieces in Biscayne bay . . . Police have no suspects.”
Second, Ovadia sent an email to R.M. suggesting Ovadia tracked
or “logged” R.M., saying: “I’m going to kill you //
ahahahHJJHHHahahhHHHHJ guess who hasn’t moved from that
shack in Normandy[, Florida] // AGHHH huess who still lives in
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that revitz apt // Ahhahahah // Ur movements I have u logged //
Looks like u don’t make ur decisions // Ur just a pawn.” 3
Law enforcement traced back to Ovadia each email account
used to send the threatening messages. Among other things, law
enforcement subpoenaed Google and internet-service providers
for account owner information and IP addresses.
In April 2024, when FBI agents intercepted Ovadia in the
Miami airport upon his return from a trip to Israel, Ovadia
admitted that he created two of the email addresses used to send
the messages in this case. Ovadia further admitted that he sent an
estimated 1,000 threatening emails to different people whom he
believed to be pedophiles. Ovadia claimed that his threats were in
response to threats he received from members of the pedophile
ring, with Ovadia’s goal being to “get on their level to be heard.”
Ovadia, however, did not provide the agents any proof that he had
received any threats.
II. PROCEDURAL HISTORY
A. Indictment and Guilty Plea
In April 2024, a grand jury in the Southern District of Florida
returned an indictment charging Ovadia with two counts of cyber

3This small sample of Ovadia’s messages omits some of his more offensive

language; we hesitate to commit his other vulgarities to paper. And it is
unnecessary to do so to resolve the issues in this appeal.
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harassment in violation of 18 U.S.C. § 2261A(2)(B). 4 Count 1 related
to Ovadia’s communications sent between November 2022 and
March 2024 to one victim, R.M. Count 2 related to Ovadia’s
communications sent between September 2023 and March 2024 to
another victim, M.K.
In September 2024, pursuant to a plea agreement, Ovadia
pled guilty to Count 1. The government agreed to, and the district
court later did, dismiss Count 2 of the indictment. Ovadia agreed
to a factual proffer statement, wherein he stipulated that the facts
were sufficient to prove the crime charged in Count 1 under 18
U.S.C. § 2261A(2)(B).
B. Presentence Investigation Report
A probation officer prepared a presentence investigation
report (“PSI”) using the 2024 Sentencing Guidelines manual. For
Ovadia’s conviction on Count 1, the PSI calculated a total offense
level of 19, consisting of: (1) a base offense level of 18 pursuant to
U.S.S.G. § 2A6.2(a); (2) a four-level increase because the offense
involved “a pattern of activity involving stalking, threatening,

418 U.S.C. § 2261A(2)(B) makes it unlawful for any person to “with the intent

to kill, injure, harass, intimidate, or place under surveillance with intent to kill,
injure, harass, or intimidate another person, use[] the mail, any interactive
computer service or electronic communication service or electronic
communication system of interstate commerce, or any other facility of
interstate or foreign commerce to engage in a course of conduct
that . . . causes, attempts to cause, or would be reasonably expected to cause
substantial emotional distress to a person described in clause (i), (ii), or (iii) of
paragraph (1)(A).”
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harassing, or assaulting the same victim,” pursuant to
U.S.S.G. § 2A6.2(b)(1); (3) a two-level decrease for acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1(a); and (4) an additional
one-level decrease for Ovadia timely notifying the government of
his intent to plead guilty, pursuant to U.S.S.G. § 3E1.1(b).
With a total offense level of 19 and a criminal history
category of I, the PSI calculated Ovadia’s advisory guidelines range
on Count 1 to be 30 to 37 months of imprisonment.
C. Ovadia’s Criminal History
Although the PSI assigned Ovadia zero criminal history
points, it listed other arrests and pending charges involving Ovadia.
Several of these matters involved Ovadia engaging in threatening
and aggressive conduct. For example, in 2021, Ovadia was arrested
for battery on a law enforcement officer in Hollywood, Florida. See
Fla. Stat. § 784.07. In 2023, Ovadia was arrested in Summit County,
Colorado, on charges of committing (1) felony menacing, (2) a bias
motivated crime, and (3) harassment by striking, kicking, or
shoving. See Colo. Rev. Stat. §§ 18-3-206, 18-9-121, 18-9-111. Both
of these criminal matters remained pending as of the PSI’s
preparation date. 5

5Relatedly, a civil action was filed against Ovadia in 2021, and the petitioner

sought a domestic violence injunction against Ovadia for conduct involving
stalking. That civil case has been closed, and the PSI does not disclose the
outcome of the litigation.
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As relevant here, the PSI disclosed that Ovadia had an
additional run-in with law enforcement—this time initiated by
Ovadia. In August 2023, Ovadia went to an FBI office in Denver,
Colorado. There, Ovadia (1) complained agents were not doing
enough to address the hacking of his cell phone, and (2) requested
an FBI badge and gun so he could handle the matter himself. When
his request was denied, Ovadia became verbally abusive and, using
vulgar language, accused the FBI agent of being a pedophile.
Ovadia complied when asked to leave, but he continued to use
offensive language as he departed the FBI office.
The PSI also included descriptions of four disciplinary
infractions committed by Ovadia while in federal custody.
According to Federal Bureau of Prisons (“BOP”) records, Ovadia
was sanctioned, convicted, and punished for various instances of
refusing to obey orders, being insolent to staff members, refusing
to stand for count, and telephone abuse.
D. Ovadia’s Objections to the PSI
Ovadia made two guidelines objections to the PSI. 6
1. U.S.S.G. § 2A6.2(b)(1)—Pattern of Harassing Same
Victim
Ovadia argued he should receive only a two-level increase
to his offense level under U.S.S.G. § 2A6.2(b)(1), rather than the

6Ovadia made several objections to the facts and the recommended special

conditions of supervised release included in the PSI. On appeal, no party raises
any issues relating to these objections.
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four-level increase included in the PSI. Section 2A6.2(b)(1) includes
five categories of aggravating factors and requires (1) a two-level
increase if the offense involves one category, or (2) a four-level
increase if the offense involves two or more categories. Ovadia
highlighted that the PSI included only one aggravating factor, to
wit: a pattern of criminal activity involving the same victim. Thus,
Ovadia argued this meant that his offense level should have been
increased by only two levels, not four levels under § 2A6.2(b)(1).
The government also objected to the PSI’s treatment of
U.S.S.G. § 2A6.2(b)(1). The government pointed out that the PSI
failed to include a description of a second aggravating factor when
applying the four-level increase under § 2A6.2(b)(1). The
government argued that two aggravating factors applied to
Ovadia’s conduct because Ovadia, in addition to engaging in a
pattern of harassing or threatening the same victim, also
threatened to use a dangerous weapon when Ovadia said that
(1) he would drill holes in a victim’s skull; and (2) the victim’s body
would be found in pieces in the Biscayne Bay. See U.S.S.G.
§ 2A6.2(b)(1)(D) (including “possession, or threatened use, of a
dangerous weapon” as an aggravating factor). Thus, the
government contended a four-level increase should still apply.
2. U.S.S.G. § 4C1.1—Zero-Point Offender Reduction
More importantly to this appeal, Ovadia argued he should
receive a two-level reduction to his offense level under U.S.S.G.
§ 4C1.1, which provides a potential reduction for offenders with
zero criminal history points. The PSI did not mention § 4C1.1 or
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explain why Ovadia, who had zero criminal history points, was
ineligible for the zero-point offender reduction in § 4C1.1.
E. Sentencing Hearing—Guidelines Objections
1. U.S.S.G. § 2A6.2(b)(1)
At Ovadia’s December 2024 sentencing hearing, the district
court began by addressing whether Ovadia’s conduct involved two
or more aggravating factors such that a four-level increase was
required under U.S.S.G. § 2A6.2(b)(1). The district court found the
record, including the PSI’s sample of Ovadia’s messages, did not
contain any explicit reference to a dangerous weapon sufficient to
establish a second aggravating factor under § 2A6.2(b)(1)(D). 7
Therefore, the district court sustained Ovadia’s first objection,
overruled the government’s objection, and stated it would impose
a two-level increase under § 2A6.2(b)(1) rather than the four-level
increase included in the PSI. The government does not appeal this
ruling.
2. U.S.S.G. § 4C1.1(a)(3)
The district court also elicited the government’s position on
Ovadia’s second objection as to § 4C1.1. The government stated
that it did not believe the zero-point offender reduction should

7Additionally, the district court declined to consider an email included in an

addendum to the PSI wherein Ovadia wrote, “LOL IM COMING TO MIAMI
WITH GERNAADES AND I HAVE ADDRESSES
SHAHAHAHHAHAHAHA AAIM GOING TO BOMB YOU ALL.” The dis-
trict court reasoned that the threat did not relate to a victim identified in the
indictment or PSI.
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apply because Ovadia made “credible threats of violence” against
the victims. U.S.S.G. § 4C1.1(a)(3).
Ovadia responded that his threats were not credible, in part
because nothing in the PSI suggested Ovadia took any steps to
carry out the threats he made via email. In response, the
government highlighted messages that suggested Ovadia knew
where his victims resided. Particularly, the government quoted the
email wherein Ovadia, in part, said: “[G]uess who hasn’t moved
from that shack in Normandy? . . . Ur movements I have u logged.”
The government provided some details, not found in the PSI
or factual proffer, when it explained that the “shack in Normandy”
email demonstrated that Ovadia knew where the targets of his
threats resided. For example, the prosecutor represented that R.M.
lived in Normandy: “From this, it’s clear that the defendant knows
where this victim lives, and this victim, who is the named victim in
this indictment . . . actually did live in Normandy at that time.” Isle
of Normandy is a neighborhood of Miami Beach, Florida. Ovadia
did not object to the prosecutor’s representations regarding R.M.’s
residence.
The prosecutor continued to add: “At the time that this
particular e-mail was sent, the defendant was actually still located
in Miami. He was not in Israel or Colorado like [when] some of the
other threatening emails . . . were sent.” Counsel for Ovadia
immediately corrected the prosecutor’s statement and pointed out
Ovadia was in Israel on February 19, 2024, when the “shack in
Normandy” email was sent. It is not disputed, however, that
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Ovadia was originally from Miami and, indeed, was arrested at the
Miami airport upon return from Israel in April 2024.
The district court overruled Ovadia’s objection and found
Ovadia was disqualified for the § 4C1.1 zero-point offender
reduction because he had made credible threats of violence in
connection with the offense. The district court found that a
reasonable person would find Ovadia’s threats to be credible
considering the totality of the circumstances, including “the
volume and frequency of the threats, the fact that the defendant
was very familiar with the victims and their whereabouts, and in
specifically identifying the victim’s current location.” After
Ovadia’s counsel contended that a determination of credibility
from a victim’s subjective viewpoint was inappropriate, the district
court reiterated that it was making an objective determination of
credibility. Ultimately, the district court did not reduce Ovadia’s
offense level by two levels pursuant to the zero-point offender
adjustment in § 4C1.1.
F. Recalculated Advisory Guidelines Range
After the district court’s rulings on the guidelines objections,
Ovadia’s recalculated total offense level was 17—two levels lower
than the offense level in the PSI—due to the application of a
two-level, rather than a four-level, “pattern of activity” increase
pursuant to U.S.S.G. § 2A6.2(b)(1). Ovadia’s total offense level of
17 and a criminal history category of I yielded a recalculated
advisory guidelines range of 24 to 30 months of imprisonment.
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G. Arguments and Allocution
The government requested that Ovadia be sentenced to
thirty months of imprisonment, the top of the recalculated
guidelines range. After briefly summarizing the nature and
circumstances of Ovadia’s offense, the government read victim
statements from R.M. and M.K. Both victims described needing
therapy to cope with Ovadia’s emotionally distressing messages.
Both victims suggested Ovadia’s threats led to strained
relationships with business partners who either became aware of
Ovadia’s messages or themselves received threats from Ovadia.
Lastly, the government described the incident leading to Ovadia’s
criminal charges in Colorado, which it said showed Ovadia
“actually does move forward and try to accomplish the threats that
he makes to his victims . . . if they are in his face.” 8
Ovadia requested an eighteen-month, below-guidelines
sentence. Ovadia’s counsel justified the request by highlighting
that Ovadia (1) was “struggling with intense drug addiction,”
(2) had no prior criminal convictions, (3) made no attempt to carry
out his threats, and (4) accepted responsibility for his conduct from
the moment of his arrest in the Miami airport. The district court
asked Ovadia’s counsel what it should make of Ovadia’s multiple

8At the sentencing hearing, Ovadia, through counsel, “denie[d] the allega-

tions” relating to his Colorado arrest and questioned the credibility of the in-
cident report. Ovadia clarified that he “object[ed] . . . to the information alleg-
ing that he committed a crime in connection with this pending [Colorado]
case.”
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disciplinary sanctions from the BOP, something the district court
found “rare” and “unusual” to see in a PSI. Ovadia’s counsel
described the incidents as “minor disciplinary incidents” that were
“reflective of someone that’s never been in jail before.”
Ovadia briefly allocuted. Ovadia attributed his conduct to
his having “overexerted [his] freedom of speech.” Ovadia stated
that he was the first person to go to the FBI to report R.M. When
the district court asked why Ovadia reported R.M. to the FBI,
Ovadia responded, “Well, Your Honor, I was being hacked.”
H. District Court’s Imposition of Sentence
The district court sentenced Ovadia to thirty-months
imprisonment, followed by three years of supervised release.
Ovadia objected to the denial of the § 4C1.1 zero-point offender
reduction and the district court’s finding that his threats were
credible. The district court responded in effect that, even with the
zero-point offender reduction, the sentence would not be less than
thirty months. In full, the district court said:
Okay. Your objections are noted but I will say, even
if I had given the defendant that reduction, I think I
am pretty confident that I would end up back in the
same place as far as the 30-month sentence. Had
he -- even if he qualified for the four-level
enhancement, I was prepared to sentence him higher
than the 30 months. I lowered that having considered
the fact that I felt that only a two-level reduction
should have been given, but having considered all the
3553(a) factors and the circumstances here, I just can’t
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imagine a scenario where less than the 30 months is
warranted but your objections are noted.
Ovadia timely appealed.
III. STANDARD OF REVIEW
“We review de novo the interpretation and application of the
Sentencing Guidelines.” United States v. Kluge, 147 F.4th 1291, 1296
(11th Cir. 2025) (quoting United States v. Dupree, 57 F.4th 1269, 1272
(11th Cir. 2023) (en banc)). The district court’s factual findings at
sentencing, however, are reviewed under the clearly erroneous
standard. United States v. Bergman, 852 F.3d 1046, 1070 (11th Cir.
2017) (citations omitted).
We will reverse a sentence as “substantively unreasonable”
only if the district court committed an abuse of discretion in
imposing the sentence. United States v. Pugh, 515 F.3d 1179, 1191
(11th Cir. 2008).
IV. DISCUSSION
A. U.S.S.G. § 4C1.1—Zero-Point Offender Reduction
On appeal, Ovadia argues that the district court erroneously
found him ineligible for a zero-point offender reduction under
U.S.S.G. § 4C1.1. Ovadia contends that no evidence supported the
district court’s finding that he made credible threats of violence in
connection with his offense.
As background, U.S.S.G. § 4C1.1 requires that the
defendant’s offense level be decreased by two levels if the
defendant (1) “did not receive any criminal history points”; and
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(2) meets ten other criteria enumerated in § 4C1.1(a). U.S.S.G.
§ 4C1.1(a)(1)-(11). As relevant here, one of the ten remaining
criteria to receive a § 4C1.1 reduction is that “the defendant did not
use violence or credible threats of violence in connection with the
offense.” U.S.S.G. § 4C1.1(a)(3) (emphasis added). 9
A defendant bears the burden of showing a sentence
reduction is required under § 4C1.1. See United States v. Wilson, 884
F.2d 1355, 1356 (11th Cir. 1989) (“The guidelines contemplate that
. . . the defendant has the burden of proving the applicability of
guideline sections which would reduce the offense level.”).
B. “Credible Threats of Violence”
The phrase “credible threats of violence” or nearly identical
language appears in the text of the Sentencing Guidelines several
times, but never receives a definition from the Guidelines’ text or
commentary. See U.S.S.G. §§ 2D1.1(b)(2), 4C1.1(a)(3), 5C1.2(a)(2).
It also does not appear that any circuit has undertaken to define the
phrase in any detail.
No matter, because “[t]he language of the Sentencing
Guidelines, like the language of a statute, must be given its plain
and ordinary meaning.” United States v. Rogers, 989 F.3d 1255, 1261
(11th Cir. 2021) (quotations omitted). Dictionary definitions can
provide guidance to understanding a term’s ordinary meaning.
Kluge, 147 F.4th at 1298.

9On appeal, the government does not contend any other provision in
§ 4C1.1(a) bars Ovadia from receiving the zero-point offender reduction.
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“Credible” is an adjective defined as “offering reasonable
grounds for being believed or trusted.” Merriam-Webster,
https://perma.cc/AP7R-258Y (last visited Nov. 5, 2025). Black’s
Law Dictionary defines “threat” as a “communicated intent to
inflict harm or loss on another or on another’s property.” Threat,
Black’s Law Dictionary (12th ed. 2024). Thus, a combination of the
two definitions means a “credible threat” is a reasonably believable
communication of an intent to inflict harm.
Ovadia has not shown there was no evidence to support the
district court’s finding that his threats were credible.
Instead, the undisputed facts in the PSI and factual proffer
statement provided sufficient evidentiary support for the district
court’s finding that Ovadia’s emails were reasonably believable
communications of an intent to inflict harm. No one disputes that
Ovadia’s messages, which described the graphic killing, rape, and
torture of the recipients, expressed an intent to inflict harm
through violence. Ovadia’s threats were reasonably believable too.
This is not a case where the harasser did not actually know his
victims. Rather, Ovadia obsessively sent hundreds of emails to
former business partners and family members he personally knew
and claimed to be tracking. Given his personal relationships with
the recipients, he believably claimed to know where the threatened
victims lived.
Ovadia argues his messages were not “credible” threats
because he sent the messages from Colorado or Israel and lacked
immediate physical proximity to the victims located in Florida. But
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Ovadia ignores evidence that he had lived in Florida and was even
arrested in the Miami Airport upon his return from Israel. It is
reasonable to believe an individual capable of such repeated,
obsessive behavior of sending 217 threatening emails would travel
to his former home state and act on his threats made to one or
more of his former business partners or family members. That
Ovadia later told FBI agents he was only responding to threats sent
to him so that he could be “heard” does not change that his
outward manifestations made his threats believable.
Ovadia’s argument that the district court improperly relied
on unsupported factual proffers made by the government at the
sentencing hearing lacks merit. The district court found Ovadia’s
conduct involved “specifically identifying the victim’s current
location.” Ovadia contends the district court improperly relied on
the prosecutor’s statement that R.M. lived in Normandy—a
neighborhood in Miami Beach referenced in an email to R.M. It is
true that “absent a stipulation or agreement between the parties,
an attorney’s factual assertions at a sentencing hearing do not
constitute evidence that a district court can rely on.” United States
v. Washington, 714 F.3d 1358, 1361 (11th Cir. 2013) (citations
omitted). Ovadia, however, did not object during sentencing to the
prosecutor’s representation that R.M. lived in Normandy.
Even setting the Normandy representation aside, the PSI
disclosed that (1) R.M. lived in Miami; (2) Ovadia indicated in at
least one email that he knew R.M. lived in Miami; and (3) Ovadia
stated that he had R.M. “logged.”
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At bottom, we conclude that Ovadia has shown no error in
the district court’s finding that Ovadia made “credible threats of
violence” such that he was ineligible for a zero-point offender
reduction to his offense level under § 4C1.1(a)(3). 10
C. Assumed Error Harmlessness
Even if the district court had erred by failing to reduce
Ovadia’s offense level by two levels based on the zero-point
offender reduction under § 4C1.1, we would not vacate Ovadia’s
sentence and remand for resentencing. That is because (1) the
district court stated, in effect, that it would have imposed a
thirty-month prison sentence regardless of its resolution of the
§ 4C1.1 issue; and (2) Ovadia has not shown his thirty-month
prison sentence is substantively unreasonable under the totality of
the circumstances here.
“Under our precedent, we need not review a sentencing
issue when (1) the district court states it would have imposed the
same sentence, even absent an alleged error, and (2) the sentence

10We do not consider Ovadia’s undeveloped argument—raised for the first

time in his Reply Brief—that the district court applied the wrong legal standard
when it determined whether Ovadia’s threats were credible by using a
reasonable person test. See Nat’l Mining Ass’n v. United Steel Workers, 985 F.3d
1309, 1326 n.15 (11th Cir. 2021) (“[W]e do not consider arguments fairly raised
for the first time in reply briefs.”). Even so, we note that Ovadia’s argument
on this point is dubious. As we have explained, whether a credible threat of
violence was made involves examining from an objective viewpoint whether
the threats were reasonably believable. The district court applied this objective
standard, finding “objectively, anyone under those circumstances would
believe that these threats of violence were credible.”
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is substantively reasonable.” United States v. Grushko, 50 F.4th 1, 18
(11th Cir. 2022) (citation modified). A district court’s choice to
make a so-called “Keene statement,” therefore, can trigger an
“assumed error harmlessness inquiry.” United States v. Keene, 470
F.3d 1347, 1349 (11th Cir. 2006). We undertake that assumed error
inquiry.
1. Keene Statement
Ovadia first argues the district court did not make a
sufficiently clear Keene statement. We disagree.
The district court did begin in an equivocal manner by
saying, “[E]ven if I had given the defendant that reduction, I think
I am pretty confident that I would end up back in the same place as
far as the 30-month sentence.” But the district court further
clarified that a thirty-month sentence would have been imposed
regardless of the § 4C1.1 issue by saying, “[H]aving considered all
the 3553(a) factors and the circumstances here, I just can’t imagine
a scenario where less than the 30 months is warranted but your
objections are noted.”
While not perfect, the district court’s Keene statement was
adequate because it (1) was made just after pronouncing the
sentence; and (2) indicated the district court would reach the same
sentence regardless of its resolution of the § 4C1.1 guideline issue.
See United States v. Delgado, 981 F.3d 889, 900 n.8 (11th Cir. 2020)
(noting for Keene statements that district courts should “make clear
at the time of pronouncing the sentence that it would reach the
same sentence regardless of the Guidelines range”).
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2. Substantive Reasonableness
Even if the Keene statement was adequate, Ovadia next
argues his thirty-month prison sentence was substantively
unreasonable under his lowered advisory guidelines range. If
Ovadia had received a two-level reduction to his offense level
under § 4C1.1, his total offense level would have been 15, rather
than 17. With a total offense level of 15 and a criminal history
category of I, Ovadia’s advisory guidelines range would have been
lowered to 18 to 24 months. See U.S.S.G. Ch. 5, Pt. A (Sentencing
Table).
Determining the substantive reasonableness of a sentence
requires us to look at the “totality of the circumstances.” Grushko,
50 F.4th at 19 (citing Pugh, 515 F.3d at 1190). In imposing a
sentence, the district court must consider all the factors set forth in
18 U.S.C. § 3553(a), “but it may give greater weight to some factors
over others or even attach great weight to a single factor.” Id.
(citing United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir.
2015)). 11 The defendant bears the burden to prove his sentence is
unreasonable. Id. at 18 (citations omitted).

11 The § 3553(a) factors include: (1) the nature and circumstances of the offense

and the history and characteristics of the defendant; (2) the need for the sen-
tence to reflect the seriousness of the offense, promote respect for the law, and
provide just punishment for the offense; (3) the need for deterrence; (4) the
need to protect the public; (5) the need to provide the defendant with needed
education or vocational training or medical care; (6) the kinds of sentences
available; (7) the sentencing guidelines range; (8) pertinent policy statements
of the sentencing commission; (9) the need to avoid unwarranted sentencing
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While “the district court has discretion to impose a sentence
outside of the guidelines range, a major variance requires a more
significant justification than a minor one.” Id. at 20 (citations
omitted). “We will 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.” Id.
(citations omitted). And we do not presume a sentence outside the
guidelines range is unreasonable. Id. (citation omitted).
Given the lowered guidelines range of 18 to 24 months, the
§ 3553(a) factors, and the totality of the circumstances, Ovadia still
has not shown his thirty-month prison sentence is substantively
unreasonable. We recognize that a thirty-month prison sentence is
a six-month upward variance from the top of the lowered
guidelines range. But in imposing that sentence, the district court
stated that it considered the PSI, statements of the parties, and the
§ 3553(a) factors. The district court had before it evidence that
(1) Ovadia sent emails that were rife with offensive slurs and
threatened to rape, torture, and kill his victims in graphic detail;
(2) both victims named in the indictment sought therapy due to
Ovadia’s threats; (3) Ovadia expressed no remorse and seemed to
begin to deny culpability for the threats, saying he was “hacked”;
(4) Ovadia had two pending criminal cases involving aggressive or
threatening conduct; and (5) Ovadia had four disciplinary sanctions
while in federal custody. Under these circumstances, we cannot say

disparities; and (10) the need to provide restitution to victims. 18 U.S.C.
§ 3553(a).
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a decision to vary upwards by six months from the lowered
guidelines range was substantively unreasonable. Lastly, we note
that Ovadia’s thirty-month prison sentence is only half of the
sixty-month statutory maximum for a cyber harassment
conviction, another indication his sentence is reasonable. See
Grushko, 50 F.4th at 20 (“[A] sentence imposed below the statutory
maximum penalty is an indicator of a reasonable sentence.”); 18
U.S.C. § 2261(b)(5) (providing statutory maximum).
Ultimately, even if the district court erred by not reducing
Ovadia’s offense level pursuant to § 4C1.1, any error was harmless
because the district court would have still sentenced Ovadia to
thirty-months imprisonment, which is a substantively reasonable
sentence under Ovadia’s lowered advisory guidelines range.

V. CONCLUSION
For the foregoing reasons, we AFFIRM Ovadia’s
thirty-month sentence of imprisonment, followed by three years of
supervised release.

AFFIRMED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11199799. Public record. Not legal advice.