United States v. Bramble ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4452
CATHY L. BRAMBLE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-97-62)
Submitted: April 30, 1998
Decided: July 30, 1998
Before WIDENER, WILKINS, and LUTTIG, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
John C. Carney, CARNEY & CARNEY, Washington, D.C., for
Appellant. Lynne A. Battaglia, United States Attorney, Ira L. Oring,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Cathy L. Bramble appeals the 36-month sentence imposed upon
her guilty plea to bank fraud, 18 U.S.C. § 1344 (1994). Because we
conclude that the district court's upward departure was not an abuse
of discretion, we affirm.
I
According to the stipulation of facts in her plea agreement, Bram-
ble was a teller at the National Bank of Cambridge (the Bank). From
June 1991 until March 1996, Bramble engaged in a scheme to defraud
the Bank, obtaining approximately $225,000 from numerous embez-
zlements and misappropriations of funds.
Bramble's scheme operated in the following manner. When a cus-
tomer gave Bramble money in payment for a certificate of deposit,
Bramble issued the certificate on behalf of the Bank but retained the
payment for her own use. She did not record the certificate on the
Bank's books and records. She also misapplied funds received from
customers of the Bank in order to fund certificates of deposit previ-
ously purchased by other customers and to pay interest earned on
those previously purchased certificates.
The Bank prepared a transaction report identifying forty-eight
Bank customers whose accounts Bramble used in order to carry out
her scheme. This report was supplied to the district court in connec-
tion with the preparation of the presentence investigation report. In a
letter to the court, a Bank official stated that there was no direct audit
trail available to easily track Bramble's activities. Therefore, the
Bank's external auditors had to carefully review more than 700,000
transactions over a six-year period in order to identify each instance
of fraud.
Bramble's base offense level under USSG § 2F1.1(a)* was 6. The
_________________________________________________________________
*U.S. Sentencing Guidelines Manual (1995). Bramble was sentenced
on May 23, 1997.
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district court added 8 levels based on the amount of the loss (approxi-
mately $225,000). See USSG § 2F1.1(b)(1)(I). Because the offense
required more than minimal planning, Bramble received two addi-
tional levels. See USSG §§ 1B1.1, 2F1.1(b)(2)(A). Three levels were
subtracted based on Bramble's acceptance of responsibility. See
USSG § 3E1.1. Bramble's resulting offense level was 13. With a
criminal history category of I, her guideline range was 12-18 months.
Prior to sentencing, the district court advised counsel that an
upward departure might be appropriate because the two-level
enhancement for more than minimal planning did not adequately
account for the repetitive nature and sophistication of Bramble's
scheme. Bramble's attorney submitted a memorandum opposing an
upward departure and argued against a departure at sentencing.
At sentencing, the district judge determined that an upward depar-
ture was warranted. The judge characterized the scheme as one of the
most brazen he had seen in over thirty years on the bench. He
recounted the details of one of the many defalcations and observed
that such embezzlements occurred on a regular basis. Bramble's
scheme was described as intricate and elaborate, requiring far more
planning than that required for an enhancement under USSG
§§ 1B1.1, 2F1.2(A). Bramble frequently embezzled from various
accounts, transferred embezzled funds using various devices, and
skillfully shifted funds among the accounts to conceal her wrongdo-
ing. Her actions were substantially in excess of what ordinarily is
involved in bank fraud, and the court found that the two-level adjust-
ment for more than minimum planning did not adequately account for
her malfeasance. The court decided to adjust Bramble's offense level
by seven levels, raising it from 13 to 20. Her resulting guideline range
was 33-41 months. She received a 36-month sentence.
II
A court may depart from the guidelines range only if the court
finds that "there exists an aggravating or mitigating circumstance of
a kind, or to a degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines that should
result in a sentence different from that described." 18 U.S.C.A.
§ 3553(b) (West 1994 & Supp. 1998). The Sentencing Commission
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intended each guideline to carve out a "``heartland,' a set of typical
cases embodying the conduct that each guideline describes. When a
court finds an atypical case, one to which a particular guideline lin-
guistically applies but where conduct significantly differs from the
norm, the court may consider whether a departure is warranted."
USSG Ch. 1, Pt. A, intro. comment. 4(b).
This court has articulated a four-step analysis for district courts to
follow in deciding whether to depart. Initially, the court identifies the
circumstances and consequences of the offense. See United States v.
Achiekwelu, 112 F.3d 747, 755 (4th Cir. 1997), cert. denied, ___ U.S.
___, 66 U.S.L.W. 3262 (U.S. Oct. 6, 1997) (No. 97-5598). Second,
the court decides "whether any of the circumstances or consequences
. . . appear ``atypical' enough potentially to take the case out of the
applicable guideline's heartland." Id. Third, the court must classify
each factor that may remove the case from the applicable guideline's
heartland as one that the guidelines forbid, encourage, discourage, or
do not mention as a basis for departure. See id. Finally, the court
decides whether the factors, as classified, remove the case from the
applicable guideline's heartland and whether departure is warranted.
See id. at 756. We review the ultimate decision to depart in an atypi-
cal case for an abuse of discretion. See Koon v. United States, 518
U.S. 81, ___, 64 U.S.L.W. 4512, 4515 (1996) (No. 94-1664).
There is no dispute as to the circumstances or consequences of
Bramble's criminal acts; the district court's factual findings on this
point were not clearly erroneous. See Achiekwelu , 112 F.3d at 755.
This Court does not review the district court's identification of poten-
tial factors that may remove Bramble's conduct from the heartland of
USSG § 2F1.1(b)(2)(A). See id.
The district court identified the repetitive nature of Bramble's
offense and the sophistication of the scheme as pivotal to the upward
departure. The court did not analyze whether the guidelines forbade,
encouraged, discouraged, or did not mention departure based on
repetitiveness or sophistication. Thus, we address that question in the
first instance. See id. at 756.
In Achiekwelu, we determined that "the[g]uidelines list the com-
plexity of a defendant's fraud as a factor that supports an enhance-
ment" for more than minimal planning under USSG§ 2F1.1(b)(2)(A).
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See id. at 757. Because complexity is a basis for enhancement under
the guidelines, the Sentencing Commission either discouraged this
factor as a basis for departure or encouraged it as a factor for reduc-
tion or increase but already took it into account. Therefore, "the com-
plexity of a defendant's fraud can provide a basis for a departure only
if it is present to such an exceptional degree that it cannot be charac-
terized as typical or usual." Id. at 757 (internal quotations omitted).
While the sophisticated nature of a fraud rarely will warrant an
upward departure, see id., Bramble's fraud was so extensive and intri-
cate as to have removed this case from the heartland of the guideline
and to have provided a proper basis for the upward departure. Her
offense covered a span of five years and involved multiple transac-
tions affecting forty-eight different accounts. Her crimes were so well
concealed that outside auditors had to comb through more than
700,000 transactions to discern exactly how Bramble had accom-
plished her scheme. We conclude that the district court did not abuse
its discretion in departing upward from the guideline range in this
atypical case.
III
The district court increased Bramble's offense level by seven
levels. Bramble argues that, even if an upward departure was proper,
the extent of the departure was an abuse of discretion. Given the pre-
ceding discussion of the details of her crime, the district court's stated
reasons for departing, and the fact that a seven-level departure in such
cases is not unheard of, see United States v. Kay, 83 F.3d 98, 100-103
(5th Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3264 (U.S.
Oct. 7, 1996) (No. 96-5442), we conclude that the extent of the depar-
ture was not an abuse of discretion.
IV
We therefore affirm the sentence. 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. In light of our disposition of this appeal, we deny as moot
Bramble's motion to expedite consideration of this appeal.
AFFIRMED
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