United States v. Kevin Carden , 678 F. App'x 106 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4349
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN CARDEN,
Defendant - Appellant.
No. 16-4350
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BEVERLY CARDEN,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(1:15-cr-00016-MJG-2; 1:15-cr-00016-MJG-1)
Submitted: February 23, 2017 Decided: February 27, 2017
Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Gerald C. Ruter, LAW OFFICE OF GERALD C. RUTER PC, Baltimore,
Maryland; James Wyda, Federal Public Defender, Sapna Mirchandani,
Greenbelt, Maryland, for Appellants. Rod J. Rosenstein, United
States Attorney, Jefferson McClure Gray, Evan T. Shea, Assistant
United States Attorneys, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Kevin Carden and Beverly Carden owned and operated AccuPay,
Inc., a payroll service company that received money from small
companies for the purpose of making payroll payments to AccuPay’s
clients’ employees and to withhold and pay over to the Internal
Revenue Service payroll tax withholdings. Instead of making the
agreed payments, the Cardens diverted funds from client accounts
into their personal checking accounts to be used for the Cardens’
personal expenses.
Kevin Carden pled guilty to one count of wire fraud, 18 U.S.C.
§ 1343 (2012), and one count of filing a false tax return, 26
U.S.C. § 7206(1) (2012), and Beverly pled guilty to one count of
mail fraud, 18 U.S.C. § 1343, and one count of filing a false tax
return. The district court varied upward as to both Kevin and
Beverly, sentencing Kevin to 72 months’ imprisonment, and Beverly
to 60 months’ imprisonment. They appeal, arguing that their
sentences are substantively unreasonable. We affirm.
We review a sentence for procedural and substantive
reasonableness, applying “an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007). A district court
“has flexibility in fashioning a sentence outside of the Guidelines
range,” United States v. Diosdado–Star, 630 F.3d 359, 364 (4th
Cir. 2011), and need only “set forth enough to satisfy the
appellate court that [it] has considered the parties’ arguments
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and has a reasoned basis” for its decision. Id. (quoting Rita v.
United States, 551 U.S. 338, 356 (2007)). “In reviewing a variant
sentence, we consider whether the sentencing court acted
reasonably both with respect to its decision to impose such a
sentence and with respect to the extent of the divergence from the
sentencing range.” United States v. Washington, 743 F.3d 938, 944
(4th Cir. 2014) (internal quotation marks omitted).
The district court properly calculated Kevin Carden’s
Guidelines range as 57 to 71 months, and Beverly Carden’s
Guidelines range as 46 to 57 months. The court heard arguments
from both parties, including the Government’s suggestion of a
below-Guidelines sentence for Beverly and a within-Guidelines
sentence for Kevin, considered the sentencing factors of 18 U.S.C.
§ 3553(a) (2012), and explained its rationale for the slight upward
variant sentences it imposed. The district court considered the
arguments asserted in mitigation, but concluded that a slight
upward variance from the Guidelines range was justified in each
case due to the long-term nature of the fraud, the extensive victim
impact, and the need for deterrence. Having reviewed the record
and the district court’s thorough explanation of its sentences, we
conclude that the Cardens’ respective variance sentences are
substantively reasonable.
Accordingly, we affirm the district court’s judgments. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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