United States v. Phillippa Marcelle, 689 F. App'x 911

Background

Phillippa Marcelle incorporated Philuvine Development Center to apply for ≈$1.6M in Department of Education grants; the Center received $339,854 for 2010–2011.
To avoid a three-day drawdown rule, Marcelle routed grant funds into an account for Galaxy Business Solutions (incorporated by her mother) and concealed transfers.
Marcelle spent grant funds on personal expenditures (trips, clothing, entertainment, a $3,000 matchmaking service) while also purchasing some items for the Center.
During a federal audit, Marcelle provided few bank statements and altered/redacted statements to conceal illicit spending.
She pleaded guilty to obstructing a federal audit under 18 U.S.C. § 1516(a) (other theft and conspiracy charges were dismissed per plea). The PSR applied a base offense level 14, +2 for altering a substantial number of documents, -2 acceptance, -1 substantial assistance → total offense level 13 (12–18 months).
The district court overruled Marcelle’s objection to the +2 document-alteration enhancement, denied a downward variance, and sentenced her to 6 months imprisonment plus 6 months home detention; restitution and assessment were ordered.

Issues

Issue	Marcelle’s Argument	Government’s Argument	Held
Whether applying U.S.S.G. § 2J1.2(b)(3) (+2 for altering a substantial number of documents) to an § 1516 conviction is impermissible double counting	Enhancement impermissibly double counts the same conduct underlying the obstruction conviction (altering bank statements)	The base offense level for obstruction (§2J1.2) does not already account for document alteration; the enhancement properly increases severity for alteration	Court: No double counting; enhancement permissible because base level covers varied obstruction conduct and alteration is an additional aggravator
Whether the district court procedurally erred by truncating defense counsel’s argument at sentencing	Cutting off counsel prevented presentation of mitigating arguments (e.g., alternative sentencing)	Court has discretion to limit argument time; counsel did not formally preserve an objection after being cut off	Reviewed for plain error; no reversible error—no plain error shown because counsel made no contemporaneous objection and nothing critical was left unsaid
Whether the court failed to consider § 3553(a) factors (childcare hardship and alternatives to incarceration)	District court ignored hardship to Marcelle’s young son and did not consider noncustodial alternatives	The court stated it considered statements of the parties and all § 3553(a) factors; it adopted PSR findings and imposed partial home confinement	No plain error; the court’s statement that it considered § 3553(a) sufficed and it in fact imposed home detention for part of the sentence
Whether the sentence was substantively unreasonable	(Bare assertion) Sentence is substantively unreasonable even if procedurally valid	Sentence within advisory Guidelines and justified by deterrence and seriousness; challenges inadequately developed	Abandoned on appeal for lack of developed argument; no substantive-reasonableness ruling disturbed

Key Cases Cited

United States v. Kapordelis, 569 F.3d 1291 (11th Cir.) (double-counting standard)
United States v. Bracciale, 374 F.3d 998 (11th Cir.) (obstruction base level does not itself account for document alteration)
United States v. Phillips, 363 F.3d 1167 (11th Cir.) (enhancement for document alteration permissible)
United States v. Walters, 775 F.3d 778 (6th Cir.) (similar holding on document-alteration enhancement)
United States v. Gonzalez, 550 F.3d 1319 (11th Cir.) (procedural-unreasonableness standards)
Rita v. United States, 551 U.S. 338 (2007) (district court need not provide lengthy explanation when imposing Guidelines sentence)
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir.) (issues abandoned if not adequately argued)
United States v. DiFalco, 837 F.3d 1207 (11th Cir.) (plain-error framework for unpreserved sentencing errors)