United States v. Culberson ( 2010 )


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  •      Case: 09-10068     Document: 00511147492          Page: 1    Date Filed: 06/21/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    June 21, 2010
    No. 09-10068                         Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff - Appellee
    v.
    ERICKA CULBERSON
    Defendant - Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    No. 4:08-CR-136-A
    Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Ericka Culberson pled guilty to one count of unauthorized bank entries,
    reports, and transactions, in violation of 
    18 U.S.C. § 1005
    . She had no prior
    convictions, resulting in a base Sentencing Guidelines range of zero to six
    months. However, her pre-sentence report (“PSR”) recalculated a hypothetical
    sentencing range based on Culberson’s alleged involvement in a scheme to
    obtain over twenty fraudulent bank loans from her former employer Bank of
    America. The intended loss for the substantive offense was $20,000, but the
    *
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
    Case: 09-10068    Document: 00511147492     Page: 2   Date Filed: 06/21/2010
    No. 09-10068
    intended loss for the bank loan scheme totaled over $1,000,000, resulting in a
    Guideline range of 37–46 months imprisonment. Based on this alleged conduct,
    the district court upwardly departed from the base sentencing range and
    sentenced Culberson to 40 months imprisonment, below the thirty-year
    maximum that § 1005 permits.
    Culberson argues that the district court violated her Sixth Amendment
    rights when it engaged in fact-finding at sentencing with regard to the alleged
    bank loan scheme, using these facts as a basis for its decision to depart upwardly
    in Culberson’s sentence. Culberson does not contend that it was improper for
    the district court to apply the upward departure provisions of U.S.S.G. § 5K2.0
    (2001) to her sentence, nor does she contend that the district court’s factual
    findings with regard to the bank loan scheme were not supported by a
    preponderance of the evidence. Rather, her sole challenge is that her sentence
    would have been unreasonable without the district court’s findings in support of
    the upward departure, and that consequently, those findings had to be made by
    a jury beyond a reasonable doubt in order for them to support the sentence. We
    review de novo constitutional questions of law. United States v. Perez-Macias,
    
    335 F.3d 421
    , 425 (5th Cir. 2003).
    In explaining the changes to Sentencing Guidelines application instituted
    by United States v. Booker, 
    543 U.S. 220
     (2005), we noted:
    Booker contemplates that, with the mandatory use of the Guidelines
    excised, the Sixth Amendment will not impede a sentencing judge
    from finding all facts relevant to sentencing. The sentencing judge
    is entitled to find by a preponderance of the evidence all the facts
    relevant to the determination of a Guideline sentencing range and
    all facts relevant to the determination of a non-Guidelines sentence.
    United States v. Mares, 
    402 F.3d 511
    , 519 (5th Cir. 2005) (internal citation
    omitted); see also United States v. Whitfield, 
    590 F.3d 325
    , 367 (5th Cir. 2009)
    (quoting same). In other words, a non-Guidelines sentence within the statutory
    2
    Case: 09-10068    Document: 00511147492    Page: 3   Date Filed: 06/21/2010
    No. 09-10068
    maximum is not unreasonable, let alone a violation of the Sixth Amendment,
    when a district court judge finds facts by a preponderance of the evidence in
    support thereof.
    The district court found the information in the PSR regarding Culberson’s
    prior fraudulent conduct in the bank loan scheme to be true by a preponderance
    of the evidence and sentenced Culberson within the Guidelines range suggested
    by that conduct, as permitted by the Guidelines and our precedent. See U.S.S.G.
    § 5K2.0; Whitfield, 
    590 F.3d at 367
    ; Mares, 
    402 F.3d at 519
    . Culberson was
    sentenced to 40 months imprisonment, well below the 30-year statutory
    maximum sentence. See 
    18 U.S.C. § 1005
    . The district court did not violate
    Culberson’s Sixth Amendment rights in departing upward from her Guidelines
    sentence, as the resultant sentence was reasonable, based on the facts the
    district court properly found by a preponderance of the evidence.
    AFFIRMED.
    3
    

Document Info

Docket Number: 09-10068

Judges: Garza, Demoss, Clement

Filed Date: 6/21/2010

Precedential Status: Non-Precedential

Modified Date: 10/19/2024