United States v. Wagner-Dano
2012 U.S. App. LEXIS 9721
| 2d Cir. | 2012Background
- Wagner-Dano, a bookkeeper for the Town of Lewis and two dairy cooperatives (OLMPC, BFC), stole about $1.17 million from the entities via wire transfers, unauthorized withdrawals, and checks between 2007–2009.
- She used stolen funds to buy assets and improvements, including a customized truck and fifteen gypsy horses, and to cover ongoing expenses by intercooperative transfers.
- The scheme began unraveling in Sept. 2009 when a debt facility flagged, prompting false explanations about computer problems and later admissions of inter-entity transfers.
- Wagner-Dano waived indictment and pleaded guilty to one count of wire fraud; district court sentenced her to 78 months’ imprisonment.
- The presentence report (PSR) calculated a guideline range of 63–78 months, with objections raised by Wagner-Dano to losses, restitution, and various factual/motive assertions.
- On appeal, Wagner-Dano argues procedural errors (3553(a) factor consideration and Rule 32(i)(3)(B) objections) and substantive unreasonableness; the Second Circuit limits review to plain error for unpreserved issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly considered §3553(a) factors | Wagner-Dano contends the court failed to address offense history and personal circumstances. | Wagner-Dano argues inadequate consideration of §3553(a) factors for incapacitation and deterrence. | Plain-error review applied; no reversible error found; court adequately considered factors. |
| Whether the district court complied with Rule 32(i)(3)(B) regarding PSR objections | Wagner-Dano claims the court failed to rule on disputed PSR matters. | Wagner-Dano contends PSR objections were not adequately addressed at sentencing. | Waived/forfeited under Rule 32(i)(3); reviewed for plain error; no plain error found. |
| What standard of review applies to unpreserved Rule 32(i)(3) challenges | N/A | N/A | Plain-error standard applies to unpreserved Rule 32(i)(3) objections; waiver occurred here. |
| Whether Wagner-Dano's 78-month sentence is substantively reasonable | Sentence is excessive given repayment efforts, lack of criminal history, and family status. | Sentence within Guidelines and overall reasonable given the offenses. | Sentence within the Guidelines; substantively reasonable; affirmed. |
Key Cases Cited
- United States v. Cavera, 550 F.3d 180 (2d Cir.2008) (requires consideration of §3553(a) factors; not a rigid checklist)
- United States v. Verkhoglyad, 516 F.3d 122 (2d Cir.2008) (presumes district court considered §3553(a) factors)
- United States v. Fernandez, 443 F.3d 19 (2d Cir.2006) (court not required to respond to every argument with robotic specificity)
- United States v. Bonilla, 618 F.3d 102 (2d Cir.2010) (no need to respond to every point; substantial compliance suffices)
- United States v. Villafuerte, 502 F.3d 204 (2d Cir.2007) (plain-error review for unpreserved §3553(a) challenges)
- United States v. Marcus, U.S. , 130 S.Ct. 2159 (2010) (plain-error test: error, obviousness, substantial prejudice, fairness)
- United States v. Dorvee, 616 F.3d 174 (2d Cir.2010) (guidelines-based sentencing within reasonable range normally admissible)
- United States v. Friedberg, 558 F.3d 131 (2d Cir.2009) (Guidelines sentence generally presumptively reasonable)
- United States v. Arevalo, 628 F.3d 93 (2d Cir.2010) (administrative remedy program for PSR-related issues)