UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAMONA OBERA TUCKER, Defendant-Appellant.
No. 06-4122
United States Court of Appeals, Fourth Circuit
Argued: October 27, 2006. Decided: January 16, 2007.
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
PUBLISHED. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., District Judge. (6:05-cr-00416-HMH). Vacated and remanded by published opinion. Judge Williams wrote the opinion, in which Judge Michael and Judge King joined.
COUNSEL
OPINION
WILLIAMS, Circuit Judge:
Ramona Obera Tucker appeals her sentence of 144 months’ imprisonment for one count of bank fraud, in violation of
A.
Tucker was indicted on one count of bank fraud, in violation of
Tucker‘s presentence report (PSR) sets forth the facts of this case, which are undisputed. The Melloul-Blamey Construction Company in Greenville, South Carolina hired Tucker as office manager in October 2000. She began embezzling funds beginning in June 2002, by setting up a company called Hummingbird Marketing, of which she was sole proprietor, and using it as a “dummy vendor.” (J.A. at 56.) She would request that a company official at Melloul-Blamey write checks to Bank of America for the purpose of purchasing cashier checks to pay vendors. She then took the company checks to Bank of America, where she exchanged them for certified checks made out to her, to cash, or to Hummingbird Marketing and not to legitimate vendors. Tucker then used the money to pay her personal credit card bills and to make restitution payments to the United States Clerk of Court for two previous fraud convictions. Tucker‘s prior convictions were for similar offenses, and she was still serving the term of supervised release from the second offense when she was arrested and charged in this case. A review of Bank of America records revealed that Tucker embezzled a total of $77,222.83 from her employer.
Consequently, the PSR calculated Tucker‘s total offense level under the Guidelines to be 13. See U.S. Sentencing Guidelines Manual § 2B1.1(a)(1), (b)(1)(E) (2004). The total offense level of 13, combined with her criminal history category of IV,1 resulted in an advisory guidelines range of 24 to 30 months’ imprisonment and three to five years’ supervised release.
The PSR also indicated that Tucker had “a long history of psychiatric treatment for chronic depression and multiple suicide attempts” and that she “report[ed] experiencing symptoms of depression dating back to teenage years due to childhood abuse.” (J.A. at 60.) She was diagnosed with major depressive disorder and an unspecified personality disorder. (J.A. at 61.)
B.
The district court conducted a sentencing hearing on January 18, 2006. Tucker was offered an opportunity to allocute but chose not to make a statement. Although her attorney argued for a sentence within the guidelines range, the district court, after considering the guide-
lines factors
While the district court considered all of the
The district court also addressed one other factor at relative length, explaining that it “should consider ‘the nature and circumstances of the offense and the history and characteristics of the defendant.‘” (J.A. at 37-38.) The court indicated that the offense was serious, in that over $77,000 was embezzled in a manner characteristic of Tucker‘s previous crimes, and described her as “a dedicated embezzler and thief.” (J.A. at 38.) In the words of the district court, “She‘s a dedicated thief and apparently she always will be.” (J.A. at 37.) “[T]he record reflects in this case that she is an habitual thief, scheming thief. She gets out of jail . . . for stealing from her employers[,] . . . applies for jobs and gets access to the funds of the employer[, a]nd after a short period of time she starts embezzling significant funds . . . . And she does this over and over again. And I have no reason to think that it will not continue.” (J.A. at 37.) The district court recognized that “she has suffered from depression and other problems,” but stated that “there is nothing in her history that indicates that what she does as far as committing these offenses is not knowingly done and is not just the character that she is.” (J.A. at 37.)
The district court noted the need to fashion a sentence that would “reflect the seriousness of the offense, . . . promote respect for the law[,] provide just punishment for the offense,” promote deterrence, and provide the defendant with needed training or medical care in the most effective manner. (J.A. at 38.) The district court did not, how-ever, elaborate on these factors or indicate how the factors were better served by a variance sentence. The district court stated that although it could depart upward under the Guidelines to a 60 month sentence because Tucker‘s criminal history category did not adequately reflect the extent of her criminal past, a 60 month sentence “would not be appropriate.” (J.A. at 39.) This statement did not include an explanation of how the district court arrived at the 60 month figure or why it found a 60 month sentence inappropriate. The district court ultimately imposed a variance sentence of 144 months, followed by a five year term of supervised release during which Tucker would pay restitution of $77,223.83 for this offense. The sentence also required Tucker to participate in a mental health treatment program and not to obtain employment in which she would have access to her employer‘s funds during the five year period of supervised release that will follow her term of imprisonment.
Tucker timely noted an appeal to this court. We have jurisdiction to hear this appeal pursuant to
II.
A.
We review the sentence imposed for reasonableness. United States v. Booker, 543 U.S. 220, 261 (2005). In determining whether a sentence was reasonable, we review the district court‘s legal conclusions de novo and its factual findings for clear error. United States v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006). “Reasonableness review involves both procedural and substantive components.” United States v. Moreland, 437 F.3d 424, 434 (4th Cir. 2006).
Post-Booker, a sentencing court must engage in a multi-step process that begins with correctly determining the defendant‘s Guideline range. Moreland, 437 F.3d 424 at 432. “Next, the court must determine whether a sentence within that range . . . serves the factors set forth in
look to whether a departure is appropriate based on the Guidelines Manual or relevant case law.” Id. If it is, the court may depart, or if the “departure range still does not serve the
Reviewing the reasonableness of the resulting sentence is a “complex and nuanced” task that “requir[es] us to consider the extent to which the sentence imposed by the district court comports with the various, and sometimes competing, goals of
Cir. 2006) (quoting United States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006) (emphasis in original)). Ultimately,
[T]he overarching standard of review for unreasonableness will not depend on whether we agree with the particular sentence selected, but whether the sentence was selected pursuant to a reasoned process in accordance with law, in which the court did not give excessive weight to any relevant factor, and which effected a fair and just result in light of the relevant facts and law.
United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (internal citation omitted).
In reviewing a variance sentence, we must consider “whether the district court acted reasonably with respect to (1) the imposition of a variance sentence, and (2) the extent of the variance.” Moreland, 437 F.3d at 434. “Generally, if the reasons justifying the variance are tied to
B.
In reviewing Tucker‘s sentence, we are informed by our recent jurisprudence regarding variance sentences. We also turn to the Booker decision itself for guidance. Booker reflects the values underlying the Sixth Amendment by mandating individualized judgment through the requirement that “without the individual attention of a jury to find facts, a defendant cannot constitutionally be sentenced by a judge without discretion to consider all relevant factors under the sentencing statutes.” United States v. Cage, 451 F.3d 585, 593 (10th Cir. 2006). The decision also “refus[es] to . . . nullify the entirety of Congress‘s purpose in passing the 1984 Sentencing Act that judicial discretion on sentencing should be limited by the decisions of a publicly accountable body, the Sentencing Commission.” Cage, 451 F.3d at 593. See also Booker, 543 U.S. at 246 (“The . . . approach, which we now adopt, would . . . make the Guidelines system advisory while maintaining a strong connection between the sentence imposed and the offender‘s real conduct — a connection important to the increased uniformity of sentencing that Congress intended its Guidelines system to achieve.“). It is with these principles in mind that we
In arguing that her sentence was unreasonable, Tucker relies primarily on our decisions in Hampton and Davenport. She contends that the district court arrived at a sentence that represents an increase of almost five times the top of the guideline range by (1) giving excessive weight to a single
We turn first to Tucker‘s argument that the district court erred in finding that although all of the
We note that Tucker‘s case is distinguishable from Hampton, in which we concluded that a district court gave excessive weight to one factor where it “relied on (rather than merely mentioned) only one aspect of one
C.
We next address whether the reasons articulated by the district court are
In reaching this conclusion, we are informed by our decision in Davenport.3 In Davenport, we held that a 120 month sentence that was more than three times the top of the defendant‘s advisory guideline range was unreasonable. There, the defendant was also a dedicated
thief — he was involved in pickpocketing and credit card theft and had a substantial criminal history of similar conduct. 445 F.3d at 371-72. We held that while “[t]he district court reasonably concluded that a sentence above the advisory guideline range was warranted,” id. at 371, as Davenport had double the number of criminal history points needed to place him in the highest criminal history category, and Davenport seemingly had acknowledged that his culpability was greater than he had admitted pursuant to the plea agreement, the circumstances were not so compelling as to “justify a sentence so far above the top of the advisory guideline range.” Id. at 372.
Tucker‘s sentence represents a greater variance than the sentence held unreasonable in Davenport. It is longer in scope — a 114 month increase from the top of the advisory guidelines range as compared with Davenport‘s 83 month increase — and Tucker‘s sentence represents a greater deviation from the guidelines range — nearly five times the top of the applicable guidelines range as compared with approximately three times the top of that range. In both Tucker‘s case and in Davenport, however, the basis for the variance sentence is substantially the same — the risk of recidivism in a defendant with a strong history of engaging in similar criminal conduct who is seemingly undeterred by prior incarceration. Even taking into account the uncharged crimes that the district court found Tucker had committed, her criminal history remains substantially less extensive than that of Davenport, who had double the number of criminal history points necessary to place him in the highest criminal history category.4
In this case, the district court offered little explanation for its conclusion that a 144 month sentence was necessary to serve the goals of
criminal history points to place her in the highest criminal history category, her total offense level of 13 would have given her a guidelines range of 33 to 41 months’ imprisonment. See U.S. Sentencing Guidelines Manual ch. 5, pt. A (sentencing table). Moreover, the district court did not explain why a 60 month sentence was “[in]appropriate,” (J.A. at 39), or why a 144
Furthermore, the district court indicated that a partial basis for the sentence imposed was that the crime was serious because $77,222.83 — the amount embezzled — represented a significant sum. To be sure, the amount Tucker stole constituted a large sum of money. It was, however, at the low end of the range necessary to give her the eight-level enhancement that she received under the Guidelines. See U.S. Sentencing Guidelines Manual § 2B1.1(b)(1)(E) (2004) (enhancement for loss to the victim of $70,000 - $120,000). To have received a 144 month sentence under the Guidelines, however, Tucker would have had to embezzle a minimum of $50,000,000, an amount almost 1300 times greater than the sum she embezzled.
Tucker‘s sentence represented a 480% increase over the high end of her guidelines range. The degree of this variance far exceeds that of other sentences that we and our sister circuits have determined were unreasonable. See, e.g., United States v. Curry, 461 F.3d 452, 460-61 (4th Cir. 2006) (concluding that a downward variance of 70% was unreasonable in extent); Moreland, 437 F.3d at 436-37 (concluding that although a downward variance was warranted, the circumstances of the case were not sufficiently compelling to justify a two-thirds reduction from the bottom of the defendant‘s guidelines range); United States v. McMannus, 436 F.3d 871, 875 (8th Cir. 2006) (downward variances of 54% for one defendant and 58% for another were unreasonable). But cf. United States v. Williams, 435 F.3d 1350, 1355 (11th Cir. 2006) (per curiam) (affirming, as reasonable, a 52% downward variance where the district court had articulated appropriate reasons concerning the circumstances of the case). Having looked at these cases, we do not mean to suggest that reasonableness is determined by a strict mathematical comparison. In Moreland, for example, we referenced United States v. Jordan, 435 F.3d 693 (7th Cir. 2006), as a case involving “truly compelling circumstances justifying the imposition of a sentence nearly twice the maximum of the advisory guideline range.” Moreland, 437 F.3d at 437 n.10.
The circumstances of this case, however, are simply not so compelling as to justify a sentence nearly five times the maximum of the advisory guidelines range. Many of the bases articulated by the district court for the sentence imposed are contemplated by the Guidelines: Tucker‘s commission of this offense less than two years after her release from custody and during her period of supervised release from another offense increased her criminal history category from III to IV; the Guidelines contemplate departures for defendants whose criminal history is not adequately reflected by their criminal history score; and the amount of loss suffered represents an integral part of the calculation of the total offense level for the offense of conviction. And, as discussed above, the district court offered no compelling justification for why a 144 month sentence was necessary to protect society. Although the risk of recidivism could justify an upward variance, the extreme increase reflects an exercise of judicial discretion of the kind that the Sentencing Act was designed to avoid. In adopting the approach that it did, it is clear that the Booker Court sought to “maintain[ ] a strong connection between the sentence imposed and the offender‘s real conduct — a connection important to the increased uniformity of sentencing that Congress intended its Guidelines system to achieve.” Booker, 543 U.S. at 246. In imposing an upward variance of such magnitude in large part due to its conclusion that Tucker was a “scheming thief” and “apparently
III.
Because the extent of the upward variance imposed by the district court was unreasonable, we vacate Tucker‘s sentence and remand for resentencing.
VACATED AND REMANDED
Notes
- the nature and circumstances of the offense and the history and characteristics of the defendant;
- the need for the sentence imposed —
- to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
- to afford adequate deterrence to criminal conduct;
- to protect the public from further crimes of the defendant; and
- to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
- the kinds of sentences available;
- the kinds of sentence and the sentencing range established for —
- the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines —
- issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
- that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or
- in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments
- the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines —
- any pertinent policy statement —
- issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
- that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.
- the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
- the need to provide restitution to any victims of the offense.
have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);