United States v. Evans ( 2018 )


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  •                                                                     FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS         Tenth Circuit
    FOR THE TENTH CIRCUIT                          April 13, 2018
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    No. 17-1185
    v.                                                   (D.C. No. 1:15-CR-00220-JLK-1)
    (D. Colo.)
    JILL M. EVANS,
    Defendant - Appellant.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before HARTZ, McKAY, and MORITZ, Circuit Judges.
    _________________________________
    Defendant Jill Evans appeals her 84-month sentence imposed by the United States
    District Court for the District of Colorado. She challenges the procedural and substantive
    reasonableness of the sentence. Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we
    affirm.
    I. BACKGROUND
    In May 2015, Defendant was indicted on eight counts of wire fraud in violation of
    
    18 U.S.C. § 1343
     and six counts of money laundering in violation of 
    18 U.S.C. § 1957
    .
    On January 23, 2017, she pleaded guilty to two counts as part of a plea agreement. In
    *
    This order and judgment is not binding precedent, except under the doctrines of law of
    the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
    value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    return, the government dismissed the remaining counts. In the plea agreement the parties
    stipulated to the following facts:
    Defendant began her fraudulent scheme in late 2011. She told would-be investors
    that they could quickly make a return of up to 50 times their original investments in deals
    to purchase tankers of diesel oil and jet fuel if they would pay some shipping, storage,
    and other fees. She claimed that an international law firm was involved in the transaction
    and “documented” her claim with forged e-mails and letters purporting to be from an
    attorney in the firm stating that the deals were proceeding. She also misrepresented to
    investors that Barclays Bank was vetting the transaction, when in reality Barclays had
    refused to open a bank account for her because of her lack of business history. In
    addition, she falsely told victims that she and her husband had personally invested in the
    deals, forging documents purporting to show that she had invested $200,000 to pay fees
    for the fictitious fuel transactions.
    Defendant used the victims’ funds to cover her personal expenses, including her
    son’s college tuition and rent, mortgage payments, credit-card payments, restaurant and
    vacation costs, and restitution for a prior state-court fraud conviction. Although the deals
    never came to fruition, she continued to promise for several more years that funding was
    imminent. The investors lost more than $2 million.
    The presentence report (PSR) prepared after Defendant’s guilty plea calculated her
    offense level as 26 and her criminal-history level as Category II, producing a guidelines
    range of 70–87 months’ imprisonment. Despite her guilty plea, the PSR suggested that
    Defendant not receive a downward adjustment for acceptance of responsibility because
    2
    “the defendant ha[d] not voluntarily terminated or withdrawn from fraudulent, criminal
    conduct.” R., Vol. 2 at 101. In support of this determination the PSR reported that in
    November 2016, Defendant had lied to her probation officer about the reason for her
    termination from a job—she told him that she had left because she “couldn’t sell
    anything,” but she had actually been terminated for falsifying and forging documents. 
    Id.
    (internal quotation marks omitted). And it said that in August 2016 she had obtained
    court permission to go to New York to help her son move there, but it was later
    discovered that her son had neither traveled to New York nor planned to do so, and that
    Defendant had engaged in activity connected to her fraudulent scheme while in New
    York.
    The sentencing hearing was conducted on May 3, 2017. The district court stated
    at the outset that it would not be following the Guidelines in imposing sentence because
    of its disagreement with the Sentencing Commission’s use of data in setting the fraud
    guideline and its belief that the guideline did not properly reflect the purposes of
    sentencing set forth in 
    18 U.S.C. § 3553
    . As recommended by the PSR, it denied the
    parties’ joint motion for a downward adjustment for acceptance of responsibility, ruling
    that “the defendant after the plea engaged in further deceptions and evasions, and I do not
    think that constitutes acceptance of responsibility.” Case No. 15-cr-00220-JLK, Dkt. No.
    123, May 3, 2017, Sentencing Tr. at 9. It imposed a sentence of 84 months’
    imprisonment. The court explained its sentence at length, consuming some seven pages
    of the hearing transcript. It highlighted the egregiousness of Defendant’s crime; her lack
    of sympathy for her victims; the continuation of her illegal activity; the need to reflect the
    3
    seriousness of her offense and provide just punishment, to promote respect for the law,
    and to adequately deter her from further criminal conduct; and the potential value of
    providing her with access to educational and vocational training, as well as cognitive
    behavioral therapy.
    After the sentencing hearing the district court completed a Statement of Reasons
    form. The court noted: “Guidelines advice rejected. Sentenced per 
    18 U.S.C. § 3553
    ,”
    R., Vol. 2 at 213, although it checked the box on the form stating that the sentence was
    within the guideline range. As “ADDITIONAL BASIS FOR THE SENTENCE IN THIS
    CASE,” the court wrote: “See Sentencing Statement in the transcript of May 3, 2017,
    sentencing proceedings.” 
    Id. at 216
    .
    II.    DISCUSSION
    Defendant challenges both the procedural and substantive reasonableness of her
    sentence. We have explained the two concepts as follows:
    Procedural reasonableness addresses whether the district court
    incorrectly calculated or failed to calculate the Guidelines sentence, treated
    the Guidelines as mandatory, failed to consider the § 3553(a) factors, relied
    on clearly erroneous facts, or failed to adequately explain the sentence.
    Substantive reasonableness review broadly looks to whether the district
    court abused its discretion in weighing permissible § 3553(a) factors in
    light of the totality of the circumstances.
    United States v. Vigil, 
    696 F.3d 997
    , 1001–02 (10th Cir. 2012) (brackets, citation, and
    internal quotation marks omitted). We begin with the procedural-reasonableness
    challenge. Some of what Defendant characterizes as substantive-reasonableness
    arguments should have been characterized as procedural-reasonableness arguments, so
    4
    our organization does not track the organization of her opening brief. But the substance
    of our analysis of each argument is not affected by the characterization.
    A.         Procedural Unreasonableness
    Defendant mounts two challenges to the procedural reasonableness of the district
    court’s imposition of sentence: (1) the court made unsupported factual findings; and (2)
    the court did not follow proper procedures in determining the appropriate sentence.
    Some of Defendant’s arguments were not presented to the district court. For those
    unpreserved arguments, we review for plain error and can grant relief only if the
    following four requirements are met: “(1) the district court committed error; (2) the error
    was plain—that is, it was obvious under current well-settled law; (3) the error affected
    the Defendant’s substantial rights; and (4) the error seriously affected the fairness,
    integrity, or public reputation of judicial proceedings.” United States v. Gantt, 
    679 F.3d 1240
    , 1246 (10th Cir. 2012) (brackets and internal quotation marks omitted).
    1.      Factual Findings
    a.     Remorse and Sympathy
    Defendant disputes the district court’s finding that she had not expressed
    sympathy for her victims until the sentencing hearing itself. See Sentencing Tr. at
    124:18–24 (“One of the things that is extremely poignant to me is that it was only about
    five minutes ago that this defendant made any statement at all expressing sympathy for
    the victims in this case.”). She argues that she had repeatedly expressed remorse, as
    indicated in three letters to the court from her friends and a report by a psychiatrist that
    quoted her as saying that she “wish[ed she] would have made better decisions” and that
    5
    she was “sorry it came to all those things and that I can’t change it.” R., Vol. 2 at 207.
    But absent expressions of sympathy for the victims, her expressions of remorse could
    easily be viewed as merely reflecting regret at getting caught. In our view, Defendant’s
    continuing to lie and failure to express sympathy for the victims adequately supported the
    district court’s finding.
    b.     Acceptance of responsibility
    Defendant also argues that the district court erroneously failed to find that she had
    accepted responsibility for her crimes. The Sentencing Guidelines allow a two-level
    reduction in the applicable offense level “[i]f the defendant clearly demonstrates
    acceptance of responsibility for h[er] offense.” USSG § 3E1.1(a). One appropriate
    consideration is “voluntary termination or withdrawal from criminal conduct.” Id.
    n.1(B).
    “Determination of acceptance of responsibility is a question of fact reviewed
    under a clearly erroneous standard.” United States v. Gauvin, 
    173 F.3d 798
    , 805 (10th
    Cir. 1999). Thus, we will reverse only if “we are left with the definite and firm
    conviction that a mistake has been committed.” United States v. Battles, 
    745 F.3d 436
    ,
    458 (10th Cir. 2014) (brackets and internal quotation marks omitted). Because “‘[t]he
    sentencing judge is in a unique position to evaluate a defendant’s acceptance of
    responsibility. . . , the determination of the sentencing judge is entitled to great deference
    on review.’” Gauvin, 
    173 F.3d at 805
     (quoting USSG § 3E1.1, comment n.5). Reversal
    of the denial of the adjustment is also more difficult because the defendant has the burden
    of showing entitlement to the adjustment, so we must affirm if it was reasonable for the
    6
    sentencing judge not to be persuaded by the defendant’s evidence. See Battles, 745 F.3d
    at 458.
    Defendant does not challenge the court’s findings regarding her post-plea
    misconduct. Her argument relates to the timing. She contends that the court’s reliance
    on “[a]ny alleged activities that took place AFTER the plea” was misplaced because such
    acts “do[] not in any way diminish that Ms. Evans pled guilty, saving the Government
    and the victims from the ordeal and cost of a trial.” Aplt. Br. at 25. This contention,
    however, is contrary to circuit precedent, which has affirmed the denial of the adjustment
    because of post-plea misconduct. See Prince, 204 F.3d at 1022–23; see also United
    States v. Downing, Case No. 17-6058, 
    2017 WL 6016335
    , at *2 (10th Cir. Dec. 5, 2017)
    (unpublished). At oral argument Defendant contended that her post-plea misconduct was
    not sufficiently egregious to justify denial of the adjustment. But that point was not
    raised in her opening brief on appeal, so we decline to address it. We affirm the district
    court’s denial of the motion for a downward adjustment for acceptance of responsibility.
    2.     Proper Procedure
    Defendant raises several challenges to the district court’s sentencing methodology.
    In reviewing a sentence challenged on procedural grounds, we ordinarily review for an
    abuse of discretion. See Gantt, 
    679 F.3d at 1246
    . But, as previously noted, if the
    defendant failed to preserve the procedural challenge below, we review for plain error.
    See 
    id.
    The Supreme Court has charted the proper course for district courts to follow in
    imposing sentence:
    7
    First, a district court should begin all sentencing proceedings by correctly
    calculating the applicable Guidelines range. As a matter of administration
    and to secure nationwide consistency, the Guidelines should be the starting
    point and the initial benchmark. The district court must then consider the
    arguments of the parties and the factors set forth in [18 U.S.C.] § 3553(a).
    The district court may not presume that the Guidelines range is reasonable;
    and it may in appropriate cases impose a non-Guidelines sentence based on
    disagreement with the Sentencing Commission’s views. The district court
    must explain the basis for its chosen sentence on the record. A major
    departure from the Guidelines should be supported by a more significant
    justification than a minor one.
    Peugh v. United States, 
    569 U.S. 530
    , 536–37 (2013) (brackets, citations, and internal
    quotation marks omitted).
    The district court complied with this procedure. It correctly calculated the
    guidelines range, considered the § 3553 factors and the arguments from counsel, did not
    presume that the guidelines range was reasonable, and thoroughly explained its reasoning
    on the record. Defendant’s arguments to the contrary are not persuasive.
    Defendant claims that the district court “would not acknowledge the role that other
    persons, particularly her [deceased] husband, played in the [fraudulent] scheme.”
    Aplt. Br. at 30. But the district court clearly did so when it stated that it did not “have
    any doubt at all that other people were involved in this.” Sentencing Tr. at 126:5–6. And
    it responded reasonably when it said that it was “concerned about this defendant, not
    about [Defendant’s husband], not about any of these other people who were participants
    in this fraud.” Id. at 126:5–11.
    Defendant also challenges the district court’s method of sentencing, arguing that
    the district court’s “process and procedure in this case is very confusing,” because the
    court both stated that it would grant a variance and imposed a sentence within the
    8
    Guidelines. Aplt. Br. at 21. We do not see the inconsistency. As we understand the
    district court, when it said that it would vary from the Guidelines, it was not predicting
    the ultimate sentence it would impose but only how it would reach its conclusion. It was
    not persuaded by the guideline for fraud offenses and therefore looked simply to the §
    3553 factors (although after calculating the guideline sentencing range). Perhaps other
    judges would use different terminology, but there was certainly no prejudice to
    Defendant.
    Defendant next contends that the district court should not have rejected the
    guideline for fraud offenses. The court’s rejection derived largely from its skepticism of
    the accuracy of the sentencing statistics on which the guideline levels were based.
    Despite ample opportunity, however, Defendant did not challenge in district court either
    the rejection of the fraud guideline or the court’s reasons for doing so. We therefore
    review only for plain error, and affirm. It is well-settled that sentencing judges are not
    prohibited from rejecting guidelines. See Kimbrough v. United States, 
    552 U.S. 85
    , 109–
    10 (2007). And Defendant’s use of statistics to try to support the fraud guideline comes
    too late for plain-error review. See United States v. Wright, 
    848 F.3d 1274
    , 1285 (10th
    Cir. 2017) (under plain-error review, failure to raise factual dispute at sentencing in
    district court waives the error).
    In addition, Defendant argues that the district court failed to adequately express its
    reasons for the sentence. We disagree. Its explanation touched the necessary bases and
    provided a thorough report of its thinking.
    9
    Defendant’s final procedural challenge is that the district court failed to properly
    complete the Statement of Reasons by explaining the sentence. But any error in this
    regard was harmless because “the district court’s oral explanation [makes clear] that the
    district court would have imposed the same sentence had it filed a written statement of
    reasons form.” United States v. Ortiz-Lazaro, 
    884 F.3d 1259
    , 1264 (10th Cir. 2018).
    B.         Substantive Unreasonableness
    Defendant also challenges the substantive reasonableness of her sentence,
    asserting that it was unreasonably long. “In evaluating the substantive reasonableness of
    a sentence, we ask whether the length of the sentence is reasonable considering the
    statutory factors delineated in 
    18 U.S.C. § 3553
    (a).” United States v. Hamilton, 
    510 F.3d 1209
    , 1217–18 (10th Cir. 2007). We review a sentence for substantive reasonableness
    under an abuse-of-discretion standard. See Gall v. United States, 
    552 U.S. 38
    , 51 (2007).
    A sentence is unreasonable “only if it is arbitrary, capricious, whimsical, or manifestly
    unreasonable.” Gantt, 
    679 F.3d at 1249
     (internal quotation marks omitted).
    In light of the district court’s supportable findings regarding the nature of
    Defendant’s offenses, her continuing fraudulent conduct, her lack of sympathy for the
    victims, and her psychological problems, the sentence imposed easily satisfies the abuse-
    of-discretion standard. She contends that her sentence fails to reflect the need to avoid
    sentencing disparities, see 
    18 U.S.C. § 3553
    (a)(6), citing two sentences imposed in the
    Eastern District of Tennessee. But as we have explained in rejecting a similar claim, “No
    two cases are identical, and comparison of an individual sentence with a few counsel-
    selected cases involving other defendants sentenced by other judges is almost always
    10
    useless.” United States v. Franklin, 
    785 F.3d 1365
    , 1372 (10th Cir. 2015) (internal
    quotation marks omitted). Indeed, “the sentence may be substantively reasonable even
    when disparities are unwarranted.” 
    Id.
     at 1371 n.4.
    Defendant’s final challenge is that the 84-month sentence was substantively
    unreasonable because a 57-month sentence would be adequate to satisfy the statutory
    goals of sentencing. But “substantive reasonableness contemplates a range, not a point.”
    United States v. Martinez, 
    610 F.3d 1216
    , 1227 (10th Cir. 2010) (internal quotation
    marks omitted). “Even if we might reasonably conclude that a different sentence was
    also appropriate, that is not a sufficient basis for reversal.” 
    Id.
    We reject Defendant’s substantive-reasonableness challenge to her sentence.
    III.   CONCLUSION
    We AFFIRM Defendant’s sentence.
    Entered for the Court
    Harris L Hartz
    Circuit Judge
    11