United States v. Richard Brown
2013 U.S. App. LEXIS 20724
| 7th Cir. | 2013Background
- Brown, office manager for Walker family businesses in Evansville, Indiana, embezzled hundreds of thousands over a decade using company checks and credit cards.
- Audit in 2009 revealed extensive theft and damaged the Walkers’ finances and credit; Brown was fired.
- Brown pled guilty to one count each of wire fraud, mail fraud, and tax fraud; guideline range was 21–27 months.
- District court imposed 60 months, a substantial variance above the advisory range, after considering § 3553(a) factors.
- Post-judgment, the judge attached a statement of reasons and recalculated the guidelines range upward, citing additional adjustments.
- Brown appealed challenging Rule 32(h) notice for departures and the substantive reasonableness of the sentence; the court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 32(h) notice required for departures or variances? | Brown argues lack of notice before upward departure. | Brown contends the court’s recalc post-judgment violated Rule 32(h). | Rule 32(h) does not apply to variances from the advisory range; no error in notice. |
| Validity of post-judgment guidelines recalculation? | Recalculation altered the sentence after appeal filed. | Court sought to explain sentence; struck as improper after appeal. | Recalculation after appeal is a nullity; the written statement is disregarded; oral sentence controls. |
| Reasonableness of above-guideline sentence under 3553(a)? | Sentence varied too far from guidelines and should be unreasonable. | Court properly weighed § 3553(a) factors and nature of offense justifies variance. | 60-month sentence is reasonable given the factors and offense scope. |
| Effect of post-appeal materials on final judgment? | Written statement conflicted with oral sentence; post-judgment materials could alter. | Oral sentence governs; jurisdictional shift prevents substantive changes. | Oral pronouncement governs; appeal divests district court of power to alter judgment substantively. |
Key Cases Cited
- United States v. Barlett, 567 F.3d 901 (7th Cir. 2009) (departure regime defunct; advisory guidelines now govern discretion)
- Irizarry v. United States, 553 U.S. 708 (S. Ct. 2008) (departure concept and variance framework post-Booker)
- United States v. Munoz, 610 F.3d 989 (7th Cir. 2010) (advisory guidelines and § 3553(a) factors govern sentencing discretion)
- Gall v. United States, 552 U.S. 38 (S. Ct. 2007) (reasonableness review of sentencing under § 3553(a))
- United States v. Spano, 476 F.3d 476 (7th Cir. 2007) (departure analysis as guidance; not binding after Booker)
- United States v. Walker, 447 F.3d 999 (7th Cir. 2006) (departure framework guidance and discretion)
- United States v. Blue, 453 F.3d 948 (7th Cir. 2006) (interpretation of advisory guidelines post-Booker)
- United States v. Cephus, 684 F.3d 703 (7th Cir. 2012) (conflicts between oral and written sentences; control by oral pronouncement)
- United States v. Burton, 543 F.3d 950 (7th Cir. 2008) (ancillary matters during appeal permissible; substantive changes require jurisdiction)
- United States v. McHugh, 528 F.3d 538 (7th Cir. 2008) (post-appeal sentencing matters and authority limits)