United States v. Lessner ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
8-8-2007
USA v. Lessner
Precedential or Non-Precedential: Precedential
Docket No. 06-1030
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1030
UNITED STATES OF AMERICA
v.
BARBARA LESSNER,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 05-cr-00225
District Judge: The Honorable J. Curtis Joyner
Argued: May 21, 2007
Before: BARRY, CHAGARES, and TASHIMA,* Circuit Judges
(Opinion Filed: August 8, 2007)
Ian M. Comisky, Esq. (Argued)
Matthew D. Lee, Esq.
Blank Rome
130 North 18 th Street
One Logan Square
Philadelphia, PA 19103
Counsel for Appellant
*
The Honorable A. Wallace Tashima, Senior Circuit Judge,
United States Court of Appeals for the Ninth Circuit, sitting by
designation.
Nancy B. Winter, Esq. (Argued)
Suite 1250
Office of the United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE COURT
BARRY, Circuit Judge
This appeal arises from a 51-month sentence and a
$938,965.59 order of restitution imposed on appellant Barbara
Lessner following her pleas of guilty to 21 counts of wire fraud,
defense procurement fraud, and obstruction of justice. For the
reasons that follow, we will affirm.
I. Factual and Procedural Background
From 1995 until 2002, Lessner was a Procurement
Contracting Officer, Team Leader, at the Defense Supply Center
in Philadelphia (“DSCP”). The DSCP is one of several field
offices of the Defense Logistics Agency (“DLA”), a federal
agency whose mission is to procure supplies for the military. As
a “warranted” contracting officer with authority to sign contracts
on behalf of the DLA, Lessner oversaw a team of nine buyers in
a group responsible for awarding contracts of less than $100,000
for the purchase of biomedical and hospital equipment.
The DSCP’s competitive bid process is highly regulated.
Upon receiving a request for supplies, DSCP personnel solicit
quotes from contractors and compare those quotes against pre-
established prices in Federal Supply Schedule Price Lists and on
2
the Medical Electronic Catalog system (“ECAT”).1 If the DSCP
cannot obtain a quote lower than the price listed in the Federal
Supply Schedule, it must use the Federal Supply Schedule
contract. Similarly, if all quotes exceed the price listed on
ECAT, the DSCP must obtain the product from the ECAT
distributor. When the lowest bid has been identified, the
warranted contracting officer will sign a contract and fax it to the
winning distributor.
Authority to award DLA contracts is limited to warranted
contracting officers, such as Lessner. “Buyers” lack authority to
sign contracts that commit government funds, but are otherwise
fully engaged in the procurement process. As the supervisor of
nine buyers, Lessner personally received all requests for supplies
and distributed them among her buyers. The buyers then
solicited bids by telephone, documented the quotes, and reported
their findings to Lessner. Lessner completed the process by
reviewing the buyers’ research and signing contracts.
In August 2001, at a bar in King of Prussia, Pennsylvania,
Lessner met and struck up a conversation with another patron
named Scott Watanyar. Lessner told Watanyar about her job at
the DSCP, and Watanyar told her that he worked for a small
distributor of electronics equipment, Pamir Electronics
Corporation (“Pamir”), which was owned by his mother. Pamir
did not manufacture any of the products it sold, and Watanyar
had no previous experience with federal government contracts.
Nonetheless, he told Lessner, he would like the opportunity to do
contract work for the Department of Defense.
That same month, Lessner told her team of buyers about
Pamir. She identified Watanyar as Pamir’s point of contact and
1
A Federal Supply Schedule Price List is a contract
between the government and a manufacturer or distributor
establishing fixed prices for certain goods over a set time period,
typically one year. ECAT, by comparison, provides DSCP
personnel with information about current market prices and
discounts offered by manufacturers of medical products.
3
urged her buyers to use him. None of the buyers had previously
heard of Pamir. They quickly noticed, however, that Lessner
was engaging in whispered conversations with someone from
Pamir, perhaps Watanyar, and observed that she was unusually
involved in and knowledgeable about the details of Pamir’s
transactions.
In September 2001, one of Lessner’s buyers, “K.T.,”
noticed that Lessner had awarded contracts to Pamir even though
it had not tendered the lowest bid and despite the fact that the
products could have been obtained at a lower price if purchased
directly from the manufacturers. K.T. reported the Pamir
contracts to DSCP supervisors and began to question Lessner as
to why Pamir was being awarded the contracts. Lessner, in
response, stopped distributing work to K.T. for a period of time.
Meanwhile, she continued to award contracts to Pamir, forging
K.T.’s signature on contract folders when, in fact, K.T. had done
no work on those contracts.
On May 11, 2002, Special Agents from the Defense
Criminal Investigative Service (“DCIS”) obtained copies of all
Pamir contracts from DSCP files. Between August 2001 and
April 17, 2002, Pamir was awarded 163 contracts having a total
value of approximately $3.3 million. DCIS investigators
confirmed that contracts were consistently awarded to Pamir
when it was not offering the lowest price. A cost-impact
analysis performed on 119 of the 163 contracts revealed that
Pamir, with Lessner’s approval, overcharged the government by
$938,965.59.
The DCIS investigation revealed a pattern of contracts
awarded to Pamir for products that Lessner knew or should have
known were available at lower prices from the manufacturers.
Among those contracts were 33 contracts for products
manufactured by Telectro-Mek, Inc., a regular distributor to the
DSCP whose prices were significantly lower than those offered
by Pamir; 35 contracts for a product manufactured by Brenner
Metal Products Corporation that the DSCP could have obtained
for less than half of Pamir’s price; 16 contracts for products
manufactured by Nonin Metal, Inc. that the DSCP could have
4
obtained at a lower price from Government Marketing
International, Inc., Nonin’s authorized distributor, who
advertised its lower price on the Federal Supply Schedule Price
List; 17 contracts for products manufactured by Allied
Healthcare Products, Inc., whose lower price for eight of those
contracts was featured on the Federal Supply Schedule Price
List; and two contracts for products manufactured by Kendro
Laboratory Products, Inc., a company historically willing to
quote directly to the government at established, lower
government prices. As a Procurement Contracting Officer,
Lessner was knowledgeable about the Federal Supply Schedule
Price List and was responsible for identifying a distributor’s past
pricing history. In at least one instance, when Brenner Metal’s
president phoned Lessner to point out that the DSCP could
realize significant savings by ordering directly from Brenner
Metal, Lessner reportedly stated, “You receive enough
Government contracts, don’t look over my shoulder.”
In July 2002, Lessner’s supervisor reviewed the Pamir
files and confirmed that Lessner had awarded contracts to Pamir
for products that she could have purchased at lower prices on
ECAT. One such award came just days after that same
supervisor had advised Lessner that the product in question was
available through ECAT.
On August 16, 2002, agents from the DCIS and the FBI
executed a warrant authorizing the seizure from Pamir’s offices
of documents and computer files relating to Department of
Defense contracts. The search revealed that Lessner had, on
several occasions, faxed documents to Watanyar describing the
prices that Pamir’s competitors were bidding for certain
products. Some of the documents bore handwritten notes from
Lessner to Watanyar specifying the price he should bid to
receive a particular contract, or advising him to submit a lower
bid. Lessner also sent Watanyar copies of the Federal Supply
Schedule Price List, which showed the prices of competing
suppliers.
Lessner’s buyers subsequently reviewed DSCP files for
Pamir contracts. They discovered that, while each of the Pamir
5
files appeared to bear the signature of the buyer who purportedly
worked on the contract, Lessner had in fact forged the buyers’
signatures on 64 of the 163 files. For several of the remaining
99 files, Lessner had simply presented the file to the buyer with
Pamir’s quote and instructed the buyer to designate Pamir as the
winning bidder.
For each of the 163 Pamir contracts, funds were wired
from a United States government account in Columbus, Ohio, to
Pamir’s bank account in Exton, Pennsylvania, via the Federal
Reserve Bank’s Federal Automated Clearing House in Atlanta,
Georgia. Lessner was able to circumvent the more stringent
procedures governing the award of contracts worth more than
$100,000 by improperly awarding multiple contracts to Pamir on
the same day for the same item. She also placed fraudulent
justifications in some of the files to conceal the fact that the
items in question could be obtained elsewhere at lower cost.
On August 16, 2002, the same day that agents conducted
their search of Pamir’s offices, DCIS Special Agents interviewed
Lessner at work. They escorted her to her workstation, advised
her that they were about to conduct a lawful and authorized
search, and instructed her to remove only personal items from
her work space. As she was gathering her personal effects,
agents saw Lessner throw a current 2002 United States
Government Appointment Book in the trash can. She also
removed a stack of files from a locked file cabinet and placed
them on her desk. The agents then escorted her off the DSCP
compound.
As she was leaving, the agents saw Lessner place a call
on her cell phone. When they returned to her workstation to
conduct their search, they found two of Lessner’s buyers at her
desk. Although both buyers denied having received a call from
Lessner asking them to remove items from her desk, one of the
buyers, Cynthia Verderame, was not truthful. As it turned out,
Lessner had in fact called Verderame and instructed her to
remove a folder from Lessner’s desk and destroy it, adding that
“they are accusing me of doing something wrong.” Verderame
retrieved the folder as requested, handed it to a fellow employee,
6
and instructed that employee to place it in the trunk of
Verderame’s car. Later that evening, Verderame reviewed the
folder, which contained copies of Lessner’s emails, faxes,
handwritten notes, and customer letters, and tore the contents
into pieces. Verderame subsequently pled guilty to one count of
destruction and removal of property to prevent seizure.
During the August 16, 2002 interview and in subsequent
interviews, Lessner attempted to conceal the extent of her
relationship with Watanyar. Initially, she denied having met
Watanyar or knowing him in a personal capacity, and denied
knowing how he came to do business with the DSCP. After
agents escorted her from the DCIS compound, however, they
discovered Watanyar’s home address in the appointment book
that Lessner had discarded. At a subsequent interview, Lessner
again denied having met Watanyar or providing contract
information to him. When agents then confronted her with
documents they had recovered in their searches, she claimed to
have met Watanyar once, but denied a personal relationship.
During a November 2003 interview, Lessner admitted that she
sent bid information to promote a woman-owned business, but
again denied any personal relationship. When shown phone
records evidencing nearly 200 calls between her and Watanyar,
including calls to and from her home and personal cell phone,
she admitted a personal friendship, but denied any romantic
involvement. Agents independently learned that Lessner and
Watanyar had gone out socially on several occasions.
On April 19, 2005, a federal grand jury returned a 21-
count indictment charging Lessner with ten counts of wire fraud,
in violation of 18 U.S.C. § 1343; eight counts of defense
procurement fraud, in violation of 41 U.S.C. § 423(a) and (e);
two counts of destruction of records in a federal investigation, in
violation of 18 U.S.C. § 1519; and one count of destruction and
removal of property to prevent seizure, in violation of 18 U.S.C.
§ 2232(a). On September 21, 2005, Lessner pled guilty to all
counts.
Defense counsel thereafter moved for a downward
departure under U.S.S.G. § 5K2.13 based on Lessner’s
7
diminished capacity. At the December 14, 2005 hearing on the
motion, Lessner proffered expert testimony that she suffered
from major depressive disorder at the time of the offenses. She
also cited anxiety resulting from her husband’s heart attack and
the September 11th terrorist attacks. The government, through
its own expert witness, conceded that Lessner suffered from
present depression as a result of the criminal proceedings, but
maintained that she did not exhibit any symptoms of mental
illness at the time of her offenses which, we note, were well
underway both before the heart attack and September 11th. The
District Court also heard testimony from a DCIS Special Agent
and several of Lessner’s co-workers. It subsequently denied the
motion.
At the December 19, 2005 sentencing hearing, the District
Court found, as had the Presentence Report (“PSR”), that
Lessner’s total offense level was 24, which included a two-level
enhancement for obstruction of justice pursuant to U.S.S.G. §
3C1.1. The Court denied Lessner’s request for a reduction in the
offense level for acceptance of responsibility under U.S.S.G. §
3E1.1, finding that her case was not among the class of
“extraordinary cases” in which adjustments under both §§ 3C1.1
and 3E1.1 may apply. Finding a criminal history category of I,
and noting the advisory Guidelines range of 51 to 63 months, the
Court imposed a bottom-of-the-range sentence of 51 months’
incarceration, followed by three years of supervised release. The
Court also ordered mandatory restitution of $938,965.59 and a
mandatory special assessment of $2,100. This appeal followed.
The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a)(1) and (2).
II. Discussion
Lessner raises numerous issues on appeal, four of which
were not raised before the District Court. We will discuss each
of the issues in turn.
8
A. Whether the District Court Committed Plain Error
When it Accepted Lessner’s Guilty Plea
Lessner argues that the District Court should not have
accepted her guilty plea before questioning her on her statements
to the Court that she was under the care of mental health
professionals and taking “10 pills a day.” (J.A. at 50.) Because
no contemporaneous objection was raised, we review the
adequacy of the plea colloquy for plain error. Fed R. Crim. P.
52(b); United States v. Vonn, 535 U.S. 55, 58-59 (2002).
Plain error exists only when (1) an error was committed
(2) that was plain, and (3) that affected the defendant’s
substantial rights. United States v. Stevens, 223 F.3d 239, 242
(3d Cir. 2000). Even then, the decision to correct the error is
discretionary. United States v. Campbell, 295 F.3d 398, 404 (3d
Cir. 2002). A court of appeals should exercise its discretion
“only if the error ‘seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.’” Stevens, 223 F.3d at
242 (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
By entering a plea of guilty, a criminal defendant waives
his or her constitutional rights to be tried by a jury, to confront
his or her accusers, and to exercise the privilege against self-
incrimination. Parke v. Raley, 506 U.S. 20, 29 (1992). Like all
waivers of constitutional rights, a guilty plea must be made
“voluntarily, knowingly, and intelligently, ‘with sufficient
awareness of the relevant circumstances and likely
consequences.’” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)
(quoting Brady v. United States, 397 U.S. 742, 748 (1970)). A
district court commits reversible error by accepting a defendant’s
guilty plea without creating a record to show that the plea was
knowing and voluntary. Boykin v. Alabama, 395 U.S. 238, 242-
43 (1969).
Rule 11 of the Federal Rules of Criminal Procedure sets
forth the standards governing the acceptance of guilty pleas. It
does not, in itself, embody a constitutional directive. See United
States v. Timmreck, 441 U.S. 780, 783-84 (1979) (noting that a
violation of Rule 11 “is neither constitutional nor
9
jurisdictional”). Rather, “it is designed to assist the district judge
in making the constitutionally required determination that a
defendant’s guilty plea is truly voluntary,” and in producing “a
complete record at the time the plea is entered of the factors
relevant to this voluntariness determination.” McCarthy v.
United States, 394 U.S. 459, 465 (1969). A district court may
not accept a plea of guilty without first personally addressing the
defendant, under oath and in open court, and ascertaining that
the plea is voluntary. Fed. R. Crim. P. 11(b)(1), (2). The court
must also ascertain that the defendant understands the rights that
he or she is waiving by pleading guilty, and that there is a factual
basis for the plea. Fed. R. Crim. P. 11(b)(1), (3). Even if a court
deviates from these requirements, the error is harmless if it does
not affect substantial rights. Fed. R. Crim. P. 11(h).
At the change-of-plea hearing, defense counsel advised
the District Court that his client was presently seeing three
mental-health professionals. In response to the Court’s
questioning, Lessner testified that she was seeing “Dr. Glass
once a week; Miriam Adler twice a week and Dr. Pierce once
every two weeks.” (J.A. at 49.) The Court then inquired
whether Lessner was taking any medication, prompting the
following exchange:
A. 10 pills a day.
Q. And what type of pills are they?
A. I’m taking Lexapro, Buspar, Ativan,
Ambien and Lorazepam.
Q. And did you take any of these medications
this morning?
A. I took two.
Q. What two did you take?
A. Ativan.
Q. Two Ativan. And what if any - - well let
me ask you this way. Does the taking of
this medication affect your ability to
understand and appreciate what is taking
place in this courtroom this morning?
A. It just puts me in perspective, I understand.
Q. When you say, “Puts you in perspective” - -
10
A. Calms me down.
Q. So that you can deal with the
circumstances?
A. Yes, your honor.
Q. Very well. Are you presently under the
influence of any drugs or medication or
alcoholic beverage of any kind other than
the two that you have indicated that you
have taken this morning?
A. No, sir.
(Id. at 50.) The standard Rule 11 plea colloquy followed, at the
conclusion of which the Court found that Lessner was “fully
competent and capable of entering an informed plea” and that
her guilty plea was “a knowing and voluntary plea supported by
an independent basis in fact containing each of the essential
elements of the offense.” (Id. at 64.)
Lessner argues that the District Court “made only a
limited and superficial inquiry” into the medications that she was
taking while failing to ascertain their dosages or whether she had
taken any of them “the prior day, week or month.” (Lessner’s
Br. 29.) She urges us to take judicial notice of the “significance”
and “possible effects” of her medications (id. n.7), and contends
that the Court accepted a non-responsive answer when it
inquired whether she could understand and appreciate the
proceedings. The government maintains that the Court’s
questioning was sufficient to establish the knowing, intelligent,
and voluntary nature of the guilty plea.
Having carefully reviewed the transcript of the plea
colloquy, we conclude that the District Court developed an
adequate record to satisfy not only the procedural requirements
of Rule 11, but also the constitutional requirement that a guilty
plea be knowing, voluntary, and intelligent. The Court inquired
into the medications that Lessner was taking and those she had
taken that morning. It asked whether the medications she had
taken that morning affected her ability to understand the
proceedings, and posed several follow-up questions to elicit
further information. It also inquired whether Lessner was
11
presently under the influence of any other medications or
controlled substances. We are satisfied that Lessner’s answers to
those questions were responsive. We are likewise satisfied, as
was the Court, that Lessner’s conduct and demeanor throughout
the change-of-plea hearing amply demonstrated the
voluntariness of her plea.
The cases on which Lessner relies to the contrary are
unavailing. In United States v. Cole, 813 F.2d 43 (3d Cir. 1987),
the defendant testified at his change-of-plea hearing that he “had
some drugs last night,” but the District Court, seemingly unfazed
by this revelation, inquired only whether the defendant
understood what the Court had said. Id. at 45; see also id. at 46(finding the record ambiguous as to whether the district court
even noted the defendant’s admission of recent drug use). Had
the Court specifically inquired into the defendant’s drug use, it
would have learned that the defendant had ingested $400 of
heroin and $250 of cocaine between 5:00 P.M. the previous
evening and 6:00 A.M. that morning. Id. at 44. Under such
circumstances, we held, the Court owed a duty of further inquiry,
and the absence of such inquiry precluded a finding that the
defendant’s guilty plea was knowing and voluntary. Id. at 46,
47. Here, however, the Court did inquire into the medications
that Lessner had taken on the day of the change-of-plea hearing,
as well as their effect on her ability to understand the
proceedings. Where a district court has made such an inquiry,
the sufficiency of which is later contested, Cole provides little
guidance.
Lessner also cites the Court of Appeals for the First
Circuit’s decision in United States v. Parra-Ibanez, 936 F.2d 588(1st Cir. 1991), an opinion purporting to follow Cole. In Parra-
Ibanez, a defendant with a known history of drug use,
depression, and attempted suicide advised the Court at the
change-of-plea hearing that he had taken Ativan, Halcion, and
Restoril within the past 24 hours. The Court then asked,
“Ativan, is that a drug to control your nerves or something?”,
and the defendant responded, “Yes, sir.” No further inquiry was
made into the defendant’s medication; the Court merely asked
whether the defendant understood the proceedings and the
12
maximum penalty that he faced, and whether counsel were
satisfied that the defendant was competent to plead guilty. The
Court of Appeals held that
the judge did not inquire what dosages of Ativan,
Halcion and Restoril Parra had ingested and what
effects, if any, such medications might be likely to
have on Parra’s clear-headedness. The judge,
though plainly making a substantial inquiry, did
not probe deeply enough. We join the Third
Circuit [in Cole], and hold that the judge was
obligated by Rule 11 to ask further questions.
Id. at 596 (footnote omitted). In a footnote, the Court observed
that “the obligation of further inquiry was enhanced by Parra’s
recital in [a] prior hearing of a history of drug use, depression
and attempted suicide.” Id. n.16. Concluding that Rule 11 had
been violated, the Court reversed and remanded for findings on
whether the error was harmless.
Parra-Ibanez is distinguishable both as to the severity of
the defendant’s history of mental illness and the brevity of the
Court’s inquiry. There, just one week before the change-of-plea
hearing, the Court held a competency hearing at which the
defendant testified to his drug use, depression, and attempted
suicide—factors that enhanced the Court’s duty of inquiry under
Rule 11. Yet at the change-of-plea hearing, the Court made only
passing inquiry into the purpose of just one of the three
prescription medications that the defendant admitted to having
taken in the previous 24 hours, while failing to inquire whether
any of the medications impaired the defendant’s ability to
understand the implications of his guilty plea.
Here, by comparison, Lessner advised the District Court
that she began seeking counseling for “mental illness” only after
she committed the offenses, and did not report any history of
more serious conditions, such as drug abuse or attempted
13
suicide. 2 (J.A. at 48.) See United States v. Stewart, 977 F.2d 81,
84 (3d Cir. 1992) (distinguishing Cole “where nothing about
drug abuse was brought to the attention of the trial judge”). The
Court ascertained that she was only under the influence of two
Ativans at the time of the hearing, and that that medication did
not impair her ability to understand the proceedings.3 See United
2
Lessner faults the District Court for failing to make a
finding of competency prior to the change-of-plea hearing. To the
extent she suggests that she was not legally competent to plead
guilty, we reject that argument. She did not so argue before the
District Court, and the record plainly shows her counsel agreeing
“[a]bsolutely” with the Court’s finding that she was competent to
plead guilty. (J.A. at 66; see also J.A. at 64.) See United States v.
Jones, 336 F.3d 245, 256 (3d Cir. 2003) (noting that “an attorney’s
representation about his client’s competency” may be relevant to
a court’s evaluation of a defendant’s competency (internal
quotation marks omitted)); United States v. Vamos, 797 F.2d 1146,
1150 (2d Cir. 1986) (noting that deference is owed to a district
court’s competency determination based on observations during
court proceedings). It is also significant that when Lessner was
later evaluated for diminished capacity, no mental health expert
found an impairment of her cognitive functions even approaching
the stringent standard for legal incompetence. See 18 U.S.C. §
4241(a) (requiring that the defendant be “unable to understand the
nature and consequences of the proceedings against him or to assist
properly in his defense”). (Cf. J.A. at 94 (finding Lessner’s
thinking “organized and goal-directed,” with no evidence of
delusions or hallucinations, an “intact” memory, and an ability to
concentrate); id. at 116 (opining that Lessner “does not suffer from
reduced mental capacity” and “has no impaired ability to
understand the wrongfulness of her behavior . . . nor to exercise the
power of reasoning”); id. at 120-21 (finding no evidence of
hallucinations or delusions, “okay” cognitive functions, and
“adequate” memory).)
3
Lessner, arguing that she gave a “hopelessly ambiguous”
response to the Court’s query whether the medication affected her
ability to understand the proceedings (Reply Br. 4), would have us
ignore that portion of her response in which she affirmed, “I
14
States v. Morrisette, 429 F.3d 318, 322 (1st Cir. 2005)
(distinguishing Parra-Ibanez on the ground that the District
Court in that case failed to make any inquiry into whether the
medication affected the defendant’s ability to comprehend);
United States v. Savinon-Acosta, 232 F.3d 265, 268 (1st Cir.
2000) (“The critical question is whether the drugs—if they have
a capacity to impair the defendant’s ability to plead—have in
fact done so on this occasion.”). Lessner clearly demonstrated
her understanding of the proceedings throughout the hearing, to
the satisfaction of both the Court and defense counsel. (See J.A.
at 64, 66.) We find, therefore, that the Court sufficiently
discharged its duty under Rule 11 to inquire into Lessner’s
capacity to enter a knowing and voluntary plea and, in fact,
found that she did just that.
B. Whether the District Court Committed Plain Error by
Finding an Adequate Factual Basis for Lessner’s Pleas
of Guilty to the Obstruction Charges
Lessner argues, next, that the District Court erred in
accepting her guilty pleas to the obstruction charges because
there was not an adequate factual basis for the pleas. As she did
not raise this argument before the District Court, we review for
plain error.
Lessner pled guilty to counts 19 and 20 of the indictment,
charging her with obstruction of justice in violation of 18 U.S.C.
§ 1519, the so-called anti-shredding provision of the Sarbanes-
Oxley Act of 2002. The plain language of the statute requires
the defendant to have destroyed evidence “knowingly” and with
the “intent” to impede an investigation or case.4 See United
understand” (J.A. at 50).
4
Section 1519 provides as follows:
Whoever knowingly alters, destroys, mutilates,
conceals, covers up, falsifies, or makes a false entry
in any record, document, or tangible object with the
intent to impede, obstruct, or influence the
investigation or proper administration of any matter
15
States v. Wortman, ___ F.3d ___, 2007 WL 1651088, at *3 (7th
Cir. June 8, 2007). Count 19 related to Lessner’s disposal of the
appointment book containing Watanyar’s home address.5 Count
20, which also charged aiding and abetting under 18 U.S.C. § 2,
related to Lessner’s cell phone call to Verderame.
At the Rule 11 hearing, after reciting the elements of §
1519, the District Court questioned Lessner as follows:
Q. My next question would normally be and is
at this particular point in time, did you
commit these offenses, these two counts,
counts 19 and 20?
A. Yes.
Q. Now, I hear encouragement from the back, I
don’t know if that is your mother or your
within the jurisdiction of any department or agency
of the United States or any case filed under title 11,
or in relation to or contemplation of any such matter
or case, shall be fined under this title, imprisoned not
more than 20 years, or both.
18 U.S.C. § 1519.
5
Lessner argues that her disposal of the appointment book
in the presence of DCIS Special Agents precluded a finding that
she “destroy[ed], mutilate[d], conceal[ed], [or] cover[ed] up” a
document or tangible record. Given Congress’s intent that § 1519
apply broadly, see 148 Cong. Rec. S7419 (daily ed. July 26, 2002)
(statement of Sen. Leahy), Lessner’s act of disposal—which seems
clearly to be a form of “destruction”—falls within the proscriptions
of the statute. See Dana E. Hill, Note, Anticipatory Obstruction of
Justice: Pre-Emptive Document Destruction under the
Sarbanes-Oxley Anti-Shredding Statute, 18 U.S.C. § 1519, 89
Cornell L. Rev. 1519, 1559-60 (2004). Moreover, the pertinent
“record”—Watanyar’s contact information—was not visible to the
agents, and Lessner may not have suspected that they would
retrieve the appointment book and discover the record. Viewed in
this light, the disposal of the appointment book was also an attempt
to “conceal” and “cover up” a “record.”
16
sister or some relative or friend, whatever
the case may be, I want your response, not
theirs.
A. In my day planner, I had everybody’s
number and address in there. When I was
being walked out, I just threw it in the trash
because I knew I was not coming back. I
didn’t realize that his [Watanyar’s] number
was in there either.
Q. My question to you, ma’am, is did you
commit this offense.
A. I put it in the trash can.
(J.A. at 59-60.) The Court subsequently asked whether Lessner
and her counsel had reviewed the government plea
memorandum. Defense counsel responded that he reviewed the
memorandum with his client, and that “[e]verything there is
correct.” (Id. at 63.) The Court then asked Lessner whether
“you likewise will stipulate to facts that are contained in the
guilty plea memorandum that is stated by the government as to
what they would be prepared to prove against you if this matter
were to proceed to trial,” and Lessner responded, “Yes, sir.” (Id.)
She then entered her pleas of guilty.
Lessner argues, with regard to count 19, that her express
disclaimer of a critical element of the crime precluded the
District Court from accepting her guilty plea. Rule 11(b)(3)
requires a district court, before entering judgment on a guilty
plea, to “determine that there is a factual basis for the plea.”
Fed. R. Crim. P. 11(b)(3). A district court need not, however, be
convinced beyond a reasonable doubt of a defendant’s guilt to
accept a plea of guilty; it need only find sufficient evidence in
the record as a whole to justify a conclusion of guilt. United
States v. Cefaratti, 221 F.3d 502, 509-10 (3d Cir. 2000). See
generally North Carolina v. Alford, 400 U.S. 25, 37-38 (1970)
(permitting court to accept defendant’s guilty plea over
protestations of innocence). “The court may make that inquiry
by looking to the defendant’s own admissions, the government’s
proffer of evidence, the presentence report, or ‘whatever means
is appropriate in a specific case – so long as the factual basis is
17
put on the record.’” Cefaratti, 221 F.3d at 509 (quoting United
States v. Smith, 160 F.3d 117, 121 (2d Cir. 1998)); see also
United States v. Trott, 779 F.2d 912, 914 n.1 (3d Cir. 1985)
(“Indeed, an otherwise valid guilty plea may be properly
accepted even if the defendant during the colloquy denies factual
guilt, so long as a factual basis is adequately provided by other
sources.”). Thus, there is no violation of Rule 11 where a
district court finds a factual basis for the guilty plea from the
evidence in the record, notwithstanding the defendant’s
protestation of factual innocence. See United States v. King, 257
F.3d 1013, 1022 (9th Cir. 2001) (finding no violation of Rule 11
under such circumstances).
There was more than sufficient evidence of Lessner’s
guilt to permit the District Court to accept her guilty plea to
count 19 even were we to assume that she disavowed an intent to
impede the DCIS investigation. Lessner stipulated that DCIS
Special Agents advised her she was under investigation and was
to remove only personal items from her desk. She falsely denied
knowing Watanyar while contemporaneously discarding the
appointment book containing his home address. Although she
also denied knowing that Watanyar’s information was in the
book, she had no trouble recalling that “everybody’s number and
address [was] in there.” (J.A. at 59.) From the record before it,
the Court could and did find a factual basis for the plea. (Id. at
64 (expressly finding “an independent basis in fact containing
each of the essential elements of the offense”).) Lessner’s Rule
11 challenge to her guilty plea on count 19, accordingly, fails.
Lessner’s challenge to the District Court’s acceptance of
her guilty plea to count 20 also fails. Lessner entered a guilty
plea to count 20, but asserted that she “didn’t ask anyone to
destroy[] anything.” (J.A. at 60.) Even if that assertion were
correct (which, according to Verderame, it was not), it did not
constitute a disavowal of an essential element of the crime.
Lessner’s admission to calling Verderame and asking her to
remove a folder from her desk, even if not to destroy the folder,
was an admission to knowingly “conceal[ing]” documents. 18
U.S.C. § 1519. This admission, coupled with Lessner’s
stipulation to the facts contained in the guilty plea memorandum
18
and other facts of record, provided an adequate factual basis to
justify the Court’s acceptance of her guilty plea to count 20.
Lessner also challenges the factual basis of her guilty plea
to count 21, charging her with destruction or removal of property
to prevent seizure in violation of 18 U.S.C. §§ 2232(a) and 2.6
As does count 20, count 21 relates to Lessner’s cell phone call to
Verderame that resulted in the removal and destruction of the
folder from Lessner’s desk. Conviction under § 2232(a) requires
the intent to prevent seizure, Gasho v. United States, 39 F.3d
1420, 1430 (9th Cir. 1994), and Lessner contends that there was
neither a search warrant nor circumstances providing her with
notice that the folder in question was subject to imminent
seizure.
There is ample evidence in the record that when Lessner
asked Verderame to remove the folder from her desk, she knew
that it could and probably would be immediately seized. Again,
she stipulated that DCIS Special Agents informed her that they
were about to perform what she concedes was a lawful and
authorized search, and that she was to remove only personal
items from her workstation. She further stipulated to removing a
stack of Pamir files from a locked filing cabinet and placing
them on her desk before being escorted off the DSCP compound,
6
Section 2232(a) provides as follows:
Whoever, before, during, or after any search for or
seizure of property by any person authorized to make
such search or seizure, knowingly destroys, damages,
wastes, disposes of, transfers, or otherwise takes any
action, or knowingly attempts to destroy, damage,
waste, dispose of, transfer, or otherwise take any
action, for the purpose of preventing or impairing the
Government’s lawful authority to take such property
into its custody or control or to continue holding
such property under its lawful custody and control,
shall be fined under this title or imprisoned not more
than 5 years, or both.
18 U.S.C. §2232(a).
19
an act fully consistent with the expectation of an imminent
search or seizure. She then called Verderame and asked her to
remove a folder from her desk, supplying context to this request
by adding that “they are accusing me of doing something
wrong.” Acting at Lessner’s behest, Verderame removed the
folder, lied to investigators about doing so, and destroyed it later
that evening. There was a sufficient factual basis for Lessner’s
guilty plea to count 21.
C. Whether the District Court Erred by Failing to Grant
a Reduction in the Offense Level for Acceptance of
Responsibility
The District Court, following the recommendation of the
PSR, applied a two-level upward adjustment, pursuant to
U.S.S.G. § 3C1.1 (2001), for the obstruction of justice charged
in counts 19 through 21. Lessner does not contest this
adjustment. The Court denied, however, Lessner’s request for a
three-level reduction in the offense level for acceptance of
responsibility under U.S.S.G. § 3E1.1. Lessner contests this
denial. We review factual findings underlying the denial of a
Sentencing Guidelines reduction for acceptance of responsibility
for clear error, and reverse only if we are left with a definite and
firm conviction that a mistake has been committed. United
States v. Boone, 279 F.3d 163, 193 (3d Cir. 2002); United States
v. Felton, 55 F.3d 861, 864 (3d Cir. 1995).
Section 3E1.1(a) of the 2001 Guidelines provides that a
district court may grant a two-level reduction in the offense level
“[i]f the defendant clearly demonstrates acceptance of
responsibility for his offense”; an additional one-level reduction
is available under subsection (b) if certain conditions are met.
The § 3E1.1(a) reduction contemplates a defendant “truthfully
admitting the conduct comprising the offense(s) of conviction,
and truthfully admitting or not falsely denying any additional
relevant conduct for which the defendant is accountable under
§1B1.3 (Relevant Conduct).” U.S.S.G. §3E1.1 cmt. n.1(a). “[A]
defendant who falsely denies, or frivolously contests, relevant
conduct that the court determines to be true has acted in a
manner inconsistent with acceptance of responsibility.” Id.
20
Entry of a guilty plea will constitute “significant evidence” of
acceptance of responsibility, although it will not entitle the
defendant to an adjustment “as a matter of right.” Id. cmt. n.3;
see also United States v. McDowell, 888 F.2d 285, 292 n.2 (3d
Cir. 1989) (stating that sentencing court must consider “the
totality of the situation” when determining acceptance of
responsibility). Of significance here, “[c]onduct resulting in an
enhancement under § 3C1.1 (Obstructing or Impeding the
Administration of Justice) ordinarily indicates that the defendant
has not accepted responsibility for his criminal conduct. There
may, however, be extraordinary cases in which adjustments
under both §§ 3C1.1 and 3E1.1 may apply.” § 3E1.1 cmt. n.4.
The sentencing court’s findings in this regard flow from its
“unique position to evaluate a defendant’s acceptance of
responsibility” and are “entitled to great deference on review.”
Id. cmt. n.5.
At the December 19, 2005 sentencing hearing, following
extensive testimony and argument, the District Court denied the
§ 3E1.1 adjustment, finding that Lessner had failed to
demonstrate the existence of an “extraordinary case” warranting
adjustments under both §§ 3C1.1 and 3E1.1. (J.A. at 491.)
Lessner contends that this was error. Citing pre-Booker cases
from the Courts of Appeals for the Sixth and Ninth Circuits, she
posits that when the obstruction is limited to the very early
stages of a criminal proceeding, and a defendant subsequently
accepts responsibility, the case is “extraordinary” within the
meaning of application note 4. See United States v. Gregory,
315 F.3d 637 (6th Cir. 2003); United States v. Hopper, 27 F.3d
378 (9th Cir. 1994).
One, albeit important, flaw in Lessner’s argument is that
her obstructive conduct continued well beyond her actions on
August 16, 2002. Two weeks after asking Verderame to remove
the folder from her desk, Lessner called Verderame to confirm
that she had done so. There is also evidence that as late as
November 2003, Lessner continued to mislead investigators
about the extent of her relationship with Watanyar. Moreover,
she made no efforts to inform authorities of the nature of the
information contained in the folder that Verderame destroyed,
21
and concealed key information from her own mental health
expert.
But apart from whether and how long her obstructive
conduct continued, even at sentencing Lessner admitted, at most,
to having made a mistake and failed to demonstrate much if any
acceptance of personal responsibility for her actions.
THE WITNESS: . . . I thought it was going to
be something good I would be
doing. I didn’t think it was a
criminal act. Believe me, I
never did anything wrong in
my whole life, and I never
intended to do anything to
myself or hurt anybody like
these girls.
THE COURT: Why would you tell your
friend to destroy the
documents if you didn’t know
it was a criminal offense?
THE WITNESS: They told me I was going to
be – the industries were blind,
and it was the agent. I was
devastated. I went into shock
when she showed me the
badge. I didn’t think it was a
criminal act. I did not. If I
did, I would have resigned
and left, believe me. I’m not
a bad person.
(J.A. at 482.) When the Court pointed out that Lessner made
“[a] number of mistakes, a number of contracts,” she deflected
blame by portraying herself as a victim of circumstances, even
though those circumstances arose only after she began her
fraudulent activities.
THE WITNESS: I was under stress. We had 9-
11. I was trying to get the
22
work out. I was not thinking
clear. I was not thinking
clear, believe me. If I was, I
wouldn’t be sitting here
before you, sir. I would not
be sitting here before you if I
was thinking clear and putting
myself through this at a
perfect time of my life. I
didn’t mean to hurt anybody. I
didn’t think it was a criminal
act, believe me. I wouldn’t do
something like this. I
wouldn’t do it. . . .
(Id. at 483-84.) “[Y]ou have an explanation for everything that
comes down,” the Court responded, “[b]ut it still doesn’t justify
or explain away your criminal conduct.” (Id. at 486). Lessner
continued—and repeatedly continued—to refer to her conduct as
“a mistake” while refusing to admit that she harmed anyone
other than herself.
THE WITNESS: . . . I didn’t kill anybody or
hurt anybody. I hurt myself. I
hurt myself. I didn’t want to
hurt anyone else, believe me.
I wouldn’t have done that. I
wouldn’t have done that. I
don’t want to ever – I’m not
the kind of person that hurts
somebody. I always try to do
the best for somebody, and
this just destroyed my life. It
has destroyed my life, believe
me. It’s destroyed – I live
through a peep hole. I don’t
even want to go out of the
house. I don’t want to do
anything. . . .
THE COURT: Ms. Lessner, why didn’t you
23
think about that before you
committed these offenses?
THE WITNESS: I did not think it was a
criminal act. Believe me,
believe me. I know it is. I
know it was. I was just
rushing. I was under stress. I
was worried about him.
When he got sick, my whole
life was ruined.
THE COURT: Why is it that when you were
rushing and under stress, it
only related to this one
person, this one contractor,
this one person that was –
THE WITNESS: We had so much work at our
office at that time. He was
sending confirmations that the
items were shipped and was
making my job a little easier.
I did not think I was doing
something wrong. I was
getting confirmations. You
know, that’s all. I didn’t
mean to hurt anyone. I didn’t.
I would never want to go
through this again. Please
forgive me. Please, please
forgive me. I beg of you. I
beg of you. Please, please.
(Id. at 487-89; cf. id. at 333 (describing harm to Lessner’s staff).)
The Court also noted Lessner’s apparent lack of contrition at
sentencing. (Id. at 495-96).
Lessner’s ongoing denial of conduct for which the
District Court previously found a factual basis, and her
invocation of the September 11th attacks and her husband’s
December 2001 heart attack as justification for fraudulent acts
that began in August 2001, are “inconsistent with acceptance of
24
responsibility.” See U.S.S.G. § 3E1.1 cmt. n.1(a). According
“great deference” to the Court’s finding that this is not an
“extraordinary case,” id. cmt. nn.4, 5, it is absolutely clear that
no error was made.
D. Whether the Restitution Order Was Improper for
Lack of Findings
The District Court ordered restitution of $938,965.59,
with $234,741.39 due within six months of the imposition of
sentence, another $234.741.39 due within twelve months of the
imposition of sentence, and the balance due in $500 monthly
installments upon Lessner’s release from custody. Noting the
PSR’s observation that she lacked the ability to also pay a fine,
Lessner argues that the Court erred by failing to explore her
financial circumstances on the record before ordering restitution.
Although she suggests that she raised this issue in her “[p]leas
for consideration of § 3553(a) factors” (Lessner’s Br. 3), the
record shows no contemporaneous objection to any failure to
make findings (see J.A. at 493-500). We, therefore, review for
plain error. United States v. Diaz, 245 F.3d 294, 312 (3d Cir.
2001).
Under 18 U.S.C. § 3663A, full restitution is mandatory
when an identifiable victim has suffered pecuniary loss and the
defendant is convicted of “an offense against property” under
Title 18, including “an offense committed by fraud or deceit.”
18 U.S.C. § 3663A(a)(1), (c)(1); see also U.S.S.G. §
5E1.1(a)(1). Where there has been an award of full restitution, §
3664(f)(2) requires the sentencing court to “specify in the
restitution order the manner in which, and the schedule
according to which, the restitution is to be paid,” with reference
to “the financial resources and other assets of the defendant,
including whether any of these assets are jointly controlled”;
“projected earnings and other income of the defendant”; and
“any financial obligations of the defendant[,] including
obligations to dependents.” 18 U.S.C. § 3664(f)(2). We have
held that a district court commits plain error when, having
ordered full restitution, it fails to state on the record the manner
and schedule of payments after taking into account the
25
defendant’s financial resources. United States v. Coates, 178
F.3d 681, 684 (3d Cir. 1999). The district court’s obligation to
comply with § 3664(f)(2) may not be delegated to the probation
office. Id. at 684-85.
Here, unlike Coates, the District Court specified a
payment schedule in its restitution order:
[Y]ou shall pay a lump sum payment of at least
$234,741.30 within six months of the date of the
imposition of the sentence, and another lump sum
payment of at least [$]234,741.39 within 12
months of the imposition of this sentence. After
you’re released from custody, you are to pay the
remaining restitution in monthly installments of
$500 to the United States Defense Logistics
Agency.
(J.A. at 494.) The Court did not, however, explicitly state on the
record that it had considered Lessner’s financial situation. We
must decide whether this omission constitutes plain error.
The plain error that we found in Coates was at least as
much a consequence of the District Court’s failure to specify a
payment schedule as it was of the Court’s failure to state that it
had considered the defendant’s financial situation. Coates, 178
F.3d at 685 (holding that the district court committed plain error
by failing to satisfy the requirements under § 3664(f)(2) and
implicitly delegating responsibility to fix restitution payments to
the probation office). In Coates, we noted that when ordering
full restitution, “the district court is required to consider the
financial resources, projected earnings, and financial obligations
of the defendant.” 178 F.3d at 683. We did not expressly hold,
however, that a district court must do so on the record, and we
do not so hold now. Rather, we hold that where, as here, the
record evidences a court’s consideration of the defendant’s
financial situation—albeit without express findings—the
requirements of § 3664(f)(2) are satisfied. See United States v.
Jones, 289 F.3d 1260, 1265-66 (11th Cir. 2002) (holding same).
(See also App. at 494 (ordering lump-sum restitution payments
26
totaling exactly 60% of the PSR’s unchallenged calculation of
Lessner’s net worth).) Cf. United States v. Pruden, 398 F.3d
241, 249 (3d Cir. 2005) (examining record where district court
did not explain the basis for imposing special condition of
supervised release); United States v. Warren, 186 F.3d 358, 366-
67 (3d Cir. 1999) (stating that in the absence of express findings
on the record, the imposition of a special condition of probation
may be affirmed if the record contains a “sufficient evidentiary
basis” supporting the condition).
But even if we were to find that the District Court
committed plain error by failing to make the express findings
Lessner suggests it was required to make, there is no error here
that “‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’” Stevens, 223 F.3d at 242(quoting Olano, 507 U.S. at 732). The record is clear that
Lessner has the ability to make the restitution payments. The
PSR, to which she did not object, lists assets which include
$175,493.41 in cash, life insurance, stocks, and money owing;
$70,000 in jewelry and art; and $2,568,000 in real estate
holdings, including three rental properties and a vacation home.
Although the PSR also reflects liabilities of $2,035,818,
Lessner’s net worth of $777,675.41 exceeds the combined lump-
sum payments of $469,482.78. The record also reflects that
Lessner and her husband have a monthly income of $8,090.00,
far exceeding the $500 monthly restitution payment that she
must make upon her release from prison.
Lessner also did not contest the PSR’s findings that the
government sustained an actual loss of $938,965.59 on 119
contracts, and that she was personally involved in each of those
contracts. Nor did she contest the PSR’s findings that “the
defendant is capable of making a lump sum payment,” and that
“[i]t is apparent that the liquidation of some real estate could
provide a partial lump sum payment towards the outstanding
restitution amount” and “seem[s] to provide a tangible solution
to the restitution debt.” (J.A. at 521.) In its Statement of
Reasons, the District Court expressly “adopt[ed] the presentence
investigation report without change.” (Id. at 558.) Under these
circumstances, and in view of Lessner’s considerable assets, we
27
find that no error, much less plain error, was committed by
failing to make findings on the record.
E. Whether Lessner’s Sentence Was Unreasonable
Lessner argues that the District Court, in sentencing her to
51 months’ imprisonment, failed to consider pertinent factors
under 18 U.S.C. § 3553(a) and imposed an unduly harsh
sentence. We review a sentence for reasonableness, evaluating
both its procedural and substantive underpinnings. See United
States v. Booker, 543 U.S. 220, 261 (2005); United States v.
Cooper, 437 F.3d 324, 329-32 (3d Cir. 2006).
To be procedurally reasonable, a sentence must reflect a
district court’s meaningful consideration of the factors set forth
at 18 U.S.C. § 3553(a).7 A district court “should set forth
7
The factors that a district court must consider include:
(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;
(2) the need for the sentence imposed–
(A) to reflect the seriousness of the offense,
to promote respect for the law, and to provide
just punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes
of the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical
care, or other correctional treatment in the
most effective manner;
(3) the kinds of sentences available;
(4) 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 . . .
....
(5) any pertinent policy statement . . . issued by the
28
enough to satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.” Rita v. United States, ___
S. Ct. ___, 2007 WL 1772146, at *12 (June 21, 2007). A
sentencing court need not make findings as to each factor if the
record otherwise makes clear that the court took the factors into
account. Cooper, 437 F.3d at 329. Nor must the court consider
arguments that clearly lack merit. Id. In some instances, a
sentencing factor may overlap with a basis for a potential
Guidelines departure. United States v. King, 454 F.3d 187, 194-
95 (3d Cir. 2006).
The District Court’s explicit discussion of the § 3553(a)
factors was, admittedly, scant. Nevertheless, the record, which
reflects extensive and thoughtful questioning by the Court over
two days of hearings, more than adequately demonstrates the
Court’s meaningful consideration of the pertinent factors. By
adopting the PSR and its calculation of the total offense level
and criminal history category, the Court clearly considered “the
sentencing range established for . . . the applicable category of
offense committed by the applicable category of defendant as set
forth in the guidelines.” § 3553(a)(4). Although the Court
somewhat ambiguously indicated that its “hands are significantly
tied” with respect to imposing alternative punishments (J.A. at
422), it also acknowledged that the Guidelines are “advisory, no
question about it at this point in time” (id. at 418; see also id. at
419, 492). As the restitution order further made clear, the Court
considered “the need to provide restitution” to the DLA, the
victim of these offenses. § 3553(a)(7).
Sentencing Commission . . .;
....
(6) the need to avoid unwarranted sentence
disparities among defendants with similar records
who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of
the offense.
18 U.S.C. § 3553(a).
29
The District Court also considered “the history and
characteristics of the defendant,” § 3553(a)(1), ruling on
Lessner’s request for a reduction in the offense level for
acceptance of responsibility and her motion for a departure on
the ground of diminished capacity, and basing the latter ruling on
extensive testimony taken at the December 14, 2005 hearing.
(See also J.A. at 417 (acknowledging Lessner’s “exemplary life”
prior to these crimes).) The Court’s pointed questions to Lessner
during her plea allocution, moreover, erased any doubt as to its
studied familiarity with the facts of the offenses. (See id. at 481-
88; see also id. at 495 (“I have thought about this case for some
time.”).) See § 3553(a)(1) (requiring the court to consider “the
nature and circumstances of the offense”). With regard to the
seriousness of the offense and the need for adequate deterrence,
see § 3553(a)(2)(A), (B), the Court noted the “multimillions and
millions of dollars” at stake in government procurement and the
imperative not to “allow people that do these particular type[s]
of offenses to walk away.” (J.A. at 455.) The Court also heard
testimony that Verderame lost her job, and that Lessner’s
remaining buyers were required to undergo retraining and were
not promoted. In a nod to avoiding unwarranted sentencing
disparities, see § 3553(a)(6), the Court also found “that the
Sentencing Commission did a thorough and adequate job in
considering all of the potential affects [sic] that a sentence like
this would have, not only on those who commit these type[s] of
offenses, but also, more directly, to those who stand before the
Court today, specifically, Ms. Lessner.” (J.A. at 492.) See Rita,
___ S. Ct. ___, 2007 WL 1772146, at *12 (“Circumstances may
well make clear that the judge rests his decision upon the
Commission’s own reasoning that the Guidelines sentence is a
proper sentence (in terms of § 3353(a) and other congressional
mandates) in the typical case, and that the judge has found that
the case before him is typical.”). There can be no question that
the Court acknowledged the advisory nature of the Guidelines
and took the pertinent § 3553(a) factors into account before
imposing sentence.
In addition to being procedurally reasonable, a sentence
must also be substantively reasonable. For a sentence to be
substantively reasonable, a district court must apply the §
30
3553(a) factors reasonably to the circumstances of the case.
Cooper, 437 F.3d at 330. A sentence that falls within the
recommended Guidelines range, while not presumptively
reasonable, is less likely to be unreasonable than a sentence
outside the range. Id. at 330-31. The pertinent inquiry is
“whether the final sentence, wherever it may lie within the
permissible statutory range, was premised upon appropriate and
judicious consideration of the relevant factors.” United States v.
Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006). The party
challenging the sentence bears the ultimate burden of proving its
unreasonableness, Cooper, 437 F.3d at 332, and we accord great
deference to a district court’s choice of final sentence, id. at 330.
Lessner has failed to establish that her bottom-of-the-
range sentence was substantively unreasonable. She argues that
the District Court gave insufficient weight to such considerations
as her lack of profit from her fraud, her diagnosis of depressive
disorder, her exemplary work record, and the onerous nature of
the restitution order. The decision by the Court, however, not to
give such mitigating factors the weight that Lessner contends
they deserve does not render her sentence unreasonable. United
States v. Bungar, 478 F.3d 540, 546 (3d Cir. 2007). As is clear
from the record, the Court was influenced by the significance
and extent of Lessner’s fraud, her obstruction, her supervisory
position, her perceived lack of candor and persistent attempts to
justify her conduct while refusing to accept personal
responsibility for her actions, and the fact that she experienced
depression only after she was confronted with evidence of her
crimes and exposed to the possibility of imprisonment. At one
point, the Court sought the government’s views on a below-
range sentence of three years, prompting the government to
object that such a sentence would give Lessner “an implicit
recognition that she accepted responsibility, because that’s what
a 36-month sentence is, the bottom of the guideline range that
would have applied to the defendant had she accepted
responsibility.” (Id. at 471-72.) That we might have exercised
our sentencing discretion differently, and we do not suggest that
we would have done so, is irrelevant. See Cooper, 437 F.3d at
330. The Court did not err in concluding that the circumstances
of this case did not mandate a sentence below the bottom of the
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properly-calculated Guidelines range.
F. Whether the Restitution Order Violated the Excessive
Fines Clause of the Eighth Amendment
Lessner argues, finally, that the restitution order violated
the Excessive Fines Clause of the Eighth Amendment because
the award was grossly disproportionate to the gravity of her
offense. She failed to raise this argument before the District
Court, so again we review for plain error. See United States v.
Campbell, 295 F.3d 398, 404 (3d Cir. 2002); see also United
States v. King, 414 F.3d 1329, 1330 (11th Cir. 2005).
The Eighth Amendment to the United States Constitution
provides as follows: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII. The prohibition on
excessive fines “limits the government’s power to extract
payments, whether in cash or in kind, ‘as punishment for some
offense.’” United States v. Bajakajian, 524 U.S. 321, 328
(1998) (quoting Austin v. United States, 509 U.S. 602, 609-10
(1993) (emphasis deleted)). In the context of punitive
forfeitures, the Supreme Court has held that an Eighth
Amendment violation occurs when the forfeiture “is grossly
disproportional to the gravity of a defendant’s offense.” Id. at
334. At least one court of appeals has recognized that restitution
imposed under the Mandatory Victims Restitution Act
(“MVRA”), 18 U.S.C. § 3663A, is punishment within the
compass of the Eighth Amendment. United States v. Dubose,
146 F.3d 1141, 1144 (9th Cir. 1998) (noting the remedial,
deterrent, rehabilitative, and retributive purposes of mandatory
restitution, and citing H.R. Rep. No. 104-16, at 5 (1995), and S.
Rep. No. 104-179, at 18 (1995), reprinted in 1996 U.S.C.C.A.N.
924, 931); see also United States v. Siegel, 153 F.3d 1256, 1259
(11th Cir. 1998) (concluding, for the same reasons, that
restitution under the MVRA is “punishment” for purposes of the
Ex Post Facto Clause).
Even assuming that mandatory restitution implicates the
Eighth Amendment, there clearly was not, by any reasonable
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measure, a constitutional violation here. The District Court
ordered restitution in the amount of the uncontested actual loss
that the government sustained as a direct result of Lessner’s
fraudulent acts. Dubose, 146 F.3d at 1145 (“[P]roportionality is
inherent in a MVRA restitution order.”); see also United States
v. Graham, 72 F.3d 352, 358 n.7 (3d Cir. 1995) (dismissing as
“without merit” defendant’s argument that a restitution order
under the Victim and Witness Protection Act, 18 U.S.C. §
3663(a), in the approximate amount of the actual loss violated
the Excessive Fines Clause). Moreover, the restitution order was
not disproportionate to the statutory maximum fine of $250,000
per offense. See United States v. Newsome, 322 F.3d 328, 342
(4th Cir. 2003) (finding no Eighth Amendment violation for
restitution order that was not disproportionate either to the actual
loss or to the statutorily authorized fine). Finally, even if a
defendant’s hardship is a proper consideration, contra Dubose,
146 F.3d at 1146, neither the lump-sum payments nor the post-
incarceration monthly payments imposed here exceed Lessner’s
ability to pay. In short, the Constitution does not protect Lessner
from “a less extravagant lifestyle.” (See J.A. at 521.)
V. Conclusion
The judgment of the District Court will be affirmed.
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