United States v. Gardner , 434 F. App'x 250 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4947
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PATSY GARDNER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00914-PMD-1)
Submitted: May 31, 2011 Decided: June 7, 2011
Before KING, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nicole N. Mace III, THE MACE FIRM, Myrtle Beach, South Carolina,
for Appellant. William N. Nettles, United States Attorney, Eric
J. Klumb, Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patsy Gardner pled guilty to conspiracy and
embezzlement. The district court sentenced her to 37 months’
imprisonment, and ordered her to pay restitution. She appeals,
challenging the adequacy of the district court's factual
findings in overruling her objections to sentencing enhancements
for her role in the offense and obstruction of justice. She
also contends that the district court erred by requiring her
personal injury settlement monies to be used to pay her
restitution. Finding no error, we affirm.
The probation officer recommended that Gardner’s
offense level be increased by two levels based on her
supervisory role in the offense and another two levels based on
her having provided a false statement to the investigators. At
sentencing, Gardner objected to the role enhancement, asserting
that she and her two co-defendants were equal partners in the
scheme. She also objected to the word “substantially” in the
probation officer’s recommendation that the court apply the
obstruction of justice enhancement because Gardner
“substantially impeded th[e] investigation.”
The district court ruled that “the role adjustment is
appropriate.” The court did not make an express ruling on the
obstruction of justice enhancement, but adopted the
recommendations in the presentence report and sentenced Gardner
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to 37 months’ imprisonment — the bottom of the advisory
Guidelines range. The court also ordered Gardner to pay
restitution in the amount of $131,747.10, due immediately. In
the written judgment, the court ordered that restitution be paid
at $100 per month beginning thirty days after Gardner was
released from prison. In the statement of reasons, the district
court checked the box indicating that it “adopts the presentence
investigation report without change.”
The district court is required to make factual
findings when ruling on disputed sentencing issues. See Fed. R.
Crim. P. 32(i)(3)(B) (providing that, at sentencing, the
district court “must - for any disputed portion of the
presentence report or other controverted matter - rule on the
dispute or determine that a ruling is unnecessary”); United
States v. Llamas, 599 F.3d 381, 388 (4th Cir. 2010) (“[A]
sentencing court must provide a sufficient explanation of its
rationale in making factual findings to support its calculation
of a defendant’s Guidelines range.”) (internal quotation marks
omitted). In making such requisite findings, “the district
court may expressly adopt the recommended findings contained in
the presentence report.” United States v. Morgan, 942 F.2d 243,
245 (4th Cir. 1991). However, the court “must make clear on the
record that it has made an independent finding and that its
finding coincides with the recommended finding in the
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presentence report.” Id.; see United States v. Walker, 29 F.3d
908, 912 (4th Cir. 1994) (upholding sentencing court’s
determination where court merely overruled objections without
specific findings but court confirmed in the Statement of
Reasons that it adopted findings in the presentence report).
Here, the district court expressly adopted the
findings of the presentence report, and, after hearing the
argument of the parties as to the applicability of the role
enhancement for Gardner, determined “the role adjustment is
appropriate.” In the presentence report, the probation officer
analyzed the applicability of the enhancement, noting that
Gardner directed her two co-defendants in the commission of the
offense. She was their supervisor in the office, she directed
or ordered them to issue and cash the misappropriated checks,
and she received a larger share of the total embezzled funds.
We conclude that the findings of the presentence report, as
expressly adopted by the district court, are sufficient to
support the role enhancement, and thus we affirm the application
of the enhancement. See United States v. Kellam, 568 F.3d 125,
147-48 (4th Cir. 2009) (“The court’s ruling regarding a role
adjustment is a factual determination reviewed for clear
error.”).
Next, Gardner contends that the district court’s
failure to explicitly rule on her challenge to the obstruction
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of justice enhancement requires vacatur and a remand for
resentencing. Gardner’s objection, as it relates to the
obstruction of justice enhancement, was merely to the use of the
word “substantially” to describe the level to which her false
information to the investigators “impeded th[e] investigation.”
At sentencing, Gardner asserted only that she should have been
given another interview to clarify and correct her earlier false
statement. At no time did Gardner deny having provided a false
statement when initially interviewed by the officials. Because
Gardner failed to make a specific objection to the application
of the enhancement and failed to make any showing that the
enhancement should not apply, the district court was “free to
adopt the findings in the presentence report without more
specific inquiry or explanation.” United States v. Terry, 916
F.2d 157, 162 (4th Cir. 1990) (“The defendant has an affirmative
duty to make a showing that the information in the presentence
report is unreliable, and articulate the reasons why the facts
contained therein are untrue or inaccurate.”). Gardner did not
make the requisite showing; therefore, the district court did
not err in adopting the findings in the presentence report as to
this enhancement.
Gardner’s final challenge is to the district court’s
determination that a $91,000 personal injury settlement due to
Gardner should be applied to the restitution due. She asserts
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that the court failed to consider her financial resources,
projected earnings and other financial obligations. These are
factors to be considered when establishing the restitution
payment schedule. See 18 U.S.C. § 3664(f)(2) (2006).
However, with the new information about the $91,000
judgment Gardner was about to receive, the court determined
under 18 U.S.C. § 3664(n) (2006), that this money should be paid
in a lump sum. Section 3664(n) provides: “If a person
obligated to provide restitution, or pay a fine, receives
substantial resources from any source, including inheritance,
settlement, or other judgment, during a period of incarceration,
such person shall be required to apply the value of such
resources to any restitution or fine still owed.” 18 U.S.C.
§ 3664(n). The district court properly applied this provision
and directed that the money be applied to the restitution
judgment.
Accordingly, we affirm Gardner’s sentence, and affirm
the determination that the $91,000 settlement be used to make a
lump sum payment on the restitution debt. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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