United States v. Carter, Virginia ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2438
U NITED STATES OF A MERICA,
Plaintiff-Appellant,
v.
V IRGINIA C ARTER,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 308—Harry D. Leinenweber, Judge.
____________
A RGUED A PRIL 7, 2008—D ECIDED A UGUST 19, 2008
____________
Before R IPPLE, W ILLIAMS and SYKES, Circuit Judges.
R IPPLE, Circuit Judge. Virginia Carter was convicted by
jury of tax fraud, in violation of 26 U.S.C. § 7206(1), money
laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), and
engaging in monetary transactions knowing that the
property involved represents the proceeds of an unlaw-
ful activity, in violation of 18 U.S.C. § 1957. The district
court sentenced her to twenty-four months’ imprisonment,
2 No. 07-2438
a sentence below the advisory guidelines range.1 The
Government timely appealed the sentence.2 For the
reasons set forth in this opinion, we affirm the judgment
of the district court.
I
BACKGROUND
Robert Carter embezzled money from his insurance
business over several years. In 1999 and 2000, his accoun-
tant prepared tax returns that reported a total income
from those years of less than $300,000. These returns
under-reported the Carters’ income by nearly $1,700,000.
His wife, Virginia Carter, signed those joint tax returns.
In 2002, Ms. Carter filed for a divorce from Robert. Her
divorce attorney was unaware that much of the couple’s
money had been obtained through fraud, and he recom-
mended that she attempt to take control of the couple’s
liquid assets in order to secure those funds in the
pending proceedings. In that year, Ms. Carter transferred
more than $3,900,000 into new and previously existing
bank accounts bearing only her name.
Ms. Carter was charged with two counts of tax fraud for
1
The district court had jurisdiction under 18 U.S.C. § 3231.
2
We have jurisdiction under 28 U.S.C. § 1291. See also 18 U.S.C.
§ 3742(b).
No. 07-2438 3
under-reporting her income in 1999 and 2000.3 She was
also charged with twenty-three counts of money launder-
ing, twenty-two of which went to trial. Eighteen of the
money laundering counts that went to trial were based
on allegations that, from March 29 to September 18, 2002,
Ms. Carter had engaged in monetary transactions to
disguise the proceeds of fraud, in violation of 18 U.S.C.
§ 1956.4 The other four counts of money laundering were
3
26 U.S.C. § 7206(1) makes it a felony to “[w]illfully make[] and
subscribe[] any return, statement, or other document, which
contains or is verified by a written declaration that it is made
under the penalties of perjury, and which he does not believe
to be true and correct as to every material matter.”
4
18 U.S.C. § 1956 states:
(a)(1) Whoever, knowing that the property involved in a
financial transaction represents the proceeds of some form
of unlawful activity, conducts or attempts to conduct such
a financial transaction which in fact involves the proceeds
of specified unlawful activity—
(A) (i) with the intent to promote the carrying on of
specified unlawful activity; or
(ii) with intent to engage in conduct constituting a
violation of section 7201 or 7206 of the Internal Revenue
Code of 1986; or
(B) knowing that the transaction is designed in whole or
in part—
(i) to conceal or disguise the nature, the location,
the source, the ownership, or the control of the proceeds
of specified unlawful activity; or
(continued...)
4 No. 07-2438
based on allegations that Ms. Carter had engaged in
financial transactions with the proceeds of fraud between
April 10 and April 29, 2002, in violation of 18 U.S.C.
§ 1957.5 Ms. Carter testified at her trial and denied the
tax fraud and money laundering allegations. The jury
found her guilty on all counts.
At sentencing, the district court heard arguments by
Ms. Carter and the Government regarding the presentence
investigation report (“PSR”) and the calculation of the
advisory guidelines range. The court then determined the
base offense level for Ms. Carter’s offenses to be 29, which
included a two-level increase for obstruction of justice.
The resulting advisory guidelines sentencing range was
87 to 108 months’ imprisonment. After considering the
factors set forth in 18 U.S.C. § 3553(a), the district court
4
(...continued)
(ii) to avoid a transaction reporting requirement
under State or Federal law,
shall be sentenced to a fine of not more than $500,000 or
twice the value of the property involved in the transaction,
whichever is greater, or imprisonment for not more than
twenty years, or both. For purposes of this paragraph, a
financial transaction shall be considered to be one involving
the proceeds of specified unlawful activity if it is part of a
set of parallel or dependent transactions, any one of which
involves the proceeds of specified unlawful activity, and all
of which are part of a single plan or arrangement.
5
Under 18 U.S.C. § 1957, it is illegal to “knowingly engage[] or
attempt[] to engage in a monetary transaction in criminally
derived property of a value greater than $10,000.”
No. 07-2438 5
imposed a sentence of 24 months’ imprisonment. The
district court stated:
Well, I don’t see any legal basis for a departure, so
that leaves the issues raised by Section 3553 in deter-
mining a sentence that is proper under the facts of the
case, and not greater than necessary, to supply the
reasons for the penalties in our criminal justice system.
There is no question that the Federal law was broken
in this case. A jury so found that Mrs. Carter broke
the law on a number of occasions, I think there was
something like 30 counts.
As I looked over the counts to which she was found
guilty, the tax counts—the first year, 1999, certainly
I think that a spouse who is faced with a tax return
that is only $40,000 out of whack probably wouldn’t
notice it. But the next year when they went on the
wild spending spree it kind of defies reason that
you wouldn’t look at the return and say, Wait a min-
ute, there is something wrong here.
I believe that at some point Mrs. Carter must have
known her husband was stealing money because
their spending went from one level to an entirely
different level.
There is no question that when her husband was on
his way to prison, or was about to go to prison, she
took it upon herself to try and take this money and
make it as difficult as possible for anybody, including
creditors and the government and the tax people, from
collecting it.
6 No. 07-2438
So, she violated the law, and the law she violated
was structuring and money laundering. Having said
that, this is obviously not a paradigm of the money
laundering cases.
The article in the sentencing guidelines by the
Commission indicates that Congress’ original purpose
was, in the context of organized crime, to prevent
proceeds from crimes from being used to commit
other crimes. However, it is still a violation of the
law, which she did.
Now, in considering what an appropriate sentence
in this case is, it does seem to me that it would be
entirely improper to give her a sentence that was
similar, or certainly higher, than what her husband
got. Her husband was the source of the illegal funds.
She did benefit from them though, there is no ques-
tion about that.
Now, he got, I believe, 71 months, which is certainly
in my judgment an appropriate judgment in the
fraud conduct in which he engaged in. I think, on the
other hand, we do have the age of Mrs. Carter, she
is 61, and that is not the age of your normal criminal
that comes before the Court for sentencing.
I do think that she probably did freak out when she
found out that her husband was basically on his way to
prison and had stolen all this money, and I think she
acted to a certain extent out of an attempt to protect
herself, which I believe, if I remember correctly, I think
her divorce lawyer said that he had suggested that that
money be put in her name that she was aware of,
because I think they were contemplating a divorce.
No. 07-2438 7
Now, that is not an unusual recommendation.
Having never been a matrimonial lawyer it is my
understanding that matrimonial lawyers always tell
the wife, If you can do it, get the money in your name
and fight about it later in court rather than let your
husband take it and you have to fight for it. It is the
old, A bird in the hand is worth two in the bush.
So, her actions are not—while certainly not legal,
were not wholly not understandable.
I believe also that she probably—I am certain she
didn’t anticipate the consequences of her actions. She
may have known they were illegal, but certainly didn’t
expect them to be to the extent where she would be
standing here possibly subjected to a sentence of
87 months.
I believe she also did not receive good advice. The
advice would have been to don’t do anything, this
money is tainted money. Whatever advice she re-
ceived, that wasn’t it, and she certainly didn’t follow it.
There is no indication that she had anything to do
with the fraud. It does, however, seem to me that she
must have been aware at some point that her husband
was doing something illegal because of the vast
amount of money that all of a sudden came into
his hands, buying a piano, a ring, et cetera.
Her actions were over a relatively short period of
time and the Government did recover a good bit of
the money.
One of the comforting features of the guidelines was
that this type of question didn’t come up. It was a
8 No. 07-2438
guidelines case, if you don’t find a reason for a depar-
ture, you sentence. Now that we have the authority
and the discretion to sentence, we have to make a
conscious decision of what is a fair sentence, and it
is not an easy time.
Having considered everything, it seems to me that
a 24 month sentence is appropriate in this case.
. . . I think this case is a serious one, and I don’t think
that a 12 month or a 12 month and a day sentence
is appropriate.
I think under all the circumstances I think that when
one considers the age of—and I don’t mean to sug-
gest that she is an old lady, I am considerably older
than she is, but I think it does reflect the seriousness
of the offense, I think it does reflect the characteristics
of the offense, which is not your paradigm instance of
money laundering, and I think it does protect the
public from further crimes from this defendant.
I don’t anticipate her breaking the law again, and
I think that certainly a sentence within the guidelines
would have been [disparate] from her husband’s
sentence.
Sent. Tr. at 29-33.
II
DISCUSSION
We review a sentence for procedural error and substan-
tive reasonableness. See United States v. Omole, 523 F.3d
No. 07-2438 9
691, 696 (7th Cir. 2008). We therefore begin by ensuring
that the district court did not commit any significant
procedural error, “such as failing to calculate (or improp-
erly calculating) the Guidelines range, treating the Guide-
lines as mandatory, failing to consider the [section] 3553(a)
factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sen-
tence—including an explanation for any deviation from
the Guidelines range.” Gall v. United States, 128 S. Ct. 586,
597 (2007); United States v. Gordon, 513 F.3d 659, 666 (7th
Cir. 2008).
If we determine the district court’s sentencing decision
to be procedurally sound, we then consider the sub-
stantive reasonableness of the sentence. In reviewing the
district court’s decision on the issue of reasonableness, we
employ the deferential abuse of discretion standard.
Gordon, 513 F.3d at 666; United States v. Mykytiuk, 415 F.3d
606, 607 (7th Cir. 2005). Therefore, our “task on reason-
ableness review is limited.” United States v. Wachowiak, 496
F.3d 744, 754 (7th Cir. 2007). We must consider the sen-
tencing court’s explanation of its reasons for imposing a
particular sentence. That explanation need not be exhaus-
tive but it must be adequate “to allow for meaningful
appellate review and to promote the perception of fair
sentencing.” Omole, 523 F.3d at 697, 698 (quoting Gall, 128
S. Ct. at 597). If the sentence imposed is outside the guide-
lines range, the district court must provide a justification
that explains and supports the magnitude of the variance.
Id.; see also Gall, 128 S. Ct. at 595.
In reviewing the substantive reasonableness of a sen-
tence that falls outside the advisory guidelines range,
10 No. 07-2438
we must give due deference to the district court’s determi-
nation that the section 3553(a) factors, taken as a whole,
justified the extent of the variance. Gall, 128 S. Ct. at 597;
Gordon, 513 F.3d at 666. The fact that we “might reasonably
have concluded that a different sentence was appropriate
is insufficient to justify reversal of the district court.” Gall,
128 S. Ct. at 597. Our review must take into account that
a “sentencing judge is in a superior position to find facts
and judge their import under [section] 3553(a) in the
individual case. The judge sees and hears the evidence,
makes credibility determinations, has full knowledge of
the facts and gains insights not conveyed by the record.”
Id. (quotation omitted). Because the district court has
greater familiarity with the case and the individual defen-
dant and therefore an institutional advantage over an
appellate court in making sentencing determinations, we
must defer, absent an abuse of discretion, to its ruling.
Id.; Gordon, 513 F.3d at 666.
In our consideration of the substantive reasonableness
of a sentence, it is important to bear in mind that “[t]he
concept of substantive reasonableness contemplates ‘a
range, not a point.’ ” Omole, 523 F.3d at 698 (citation
omitted). “Because the ‘contours of substantive reason-
ableness review are still emerging,’ we cannot target a
fixed point at which a sentence turns from reasonable to
unreasonable, or vice versa.” Id. (quoting Wachowiak, 496
F.3d at 750, 751). “A variant sentence based on factors
that are particularized to the individual defendant may
be found reasonable, but we are wary of divergent sen-
tences based on characteristics that are common to simi-
larly situated offenders,” id., and sentences that “deviate[]
No. 07-2438 11
from the guidelines solely on the basis of overstated
mitigating factors or ‘normal incidents’ of the offense,”
Wachowiak, 496 F.3d at 754 (emphasis added). Even if a
judge overstates mitigating factors or considers “normal
incidents” of an offense, however, if such a consider-
ation is “just one of many reasons the judge gave for [his]
below-guidelines sentence,” the sentence will be affirmed.
See id.
Here, there is a sizable difference between the advisory
range and the sentence imposed on Ms. Carter. The
sentencing court therefore was required to enunciate
persuasive reasons, based on the factors in section 3553(a),
for the variance. See Gall, 128 S. Ct. at 596-97; Omole, 523
F.3d at 698. The Government contends that seven aspects
of the district court’s explanation of the variance were
either weak or impermissible justifications for mitigation,
or were factually incorrect. The Government submits
that any justifications properly relied on by the district
court were insufficient to support the extent of the vari-
ance and that the sentence therefore is substantively
unreasonable. We shall consider each of the Govern-
ment’s arguments.
A.
The Government’s first two contentions relate to the
district court’s primary explanation for the sentence
variance. The district court’s stated explanation for the
below-guidelines sentence relied primarily on two
factors: the district court’s finding, based in part on
Ms. Carter’s age, that she was unlikely to commit future
12 No. 07-2438
crimes, and its conclusion that the seriousness and charac-
teristics of her offense were not part of the heartland of
money-laundering offenses that the guidelines were
designed to address. Sent. Tr. at 32-33. In our view, the
Government’s objections to the district court’s primary
justification for the variance are, under the circum-
stances presented here, without merit.
The Government first submits that Ms. Carter’s age
was a weak mitigating factor because her age, 61 years,
did not set her apart from the usual tax or money-launder-
ing offender.6 It relies for this proposition on the 2006
Sentencing Commission Report, which found that 47.7
percent of tax offenders were over 50,7 and that, for
persons whose primary offense involved money launder-
ing, 20.4 percent of offenders were over 50.8 U.S. Sen-
tencing Commission, Sourcebook of Federal Sentencing
Statistics, T.6 (2006), available at http://www.ussc.gov/
ANNRPT/2006/table6.pdf.
Statistical evidence such as that proffered by the Govern-
ment can no doubt be a helpful tool to a sentencing
6
Ms. Carter’s age at the time of sentencing is the relevant
comparison because the Sentencing Commission Report, on
which the Government relies, uses the offender’s age at the time
of sentencing. Appendix A to the 2006 Sentencing Commission
Report, Descriptions of Datafiles, Variables, and Footnotes, avail-
able at http://www.ussc.gov/ANNRPT/2006/appendix_A.pdf.
7
According to the Sentencing Commission Report, the median
age of tax offenders in 2006 was 50 years.
8
According to the Sentencing Commission Report, the median
age of money launderers in 2006 was 40 years.
No. 07-2438 13
judge. Yet, there is certainly no evidence that Congress
ever intended that such evidence rigidly cabin the dis-
cretion of the district court in exercising its duty under
section 3553(a). In any event, the breadth of the statistical
categories tendered by the Government counsels in
favor of extreme caution in relying on such raw numbers
in the delicate task of sentencing. For instance, the Gov-
ernment notes that, in 2006, almost one-half of tax offend-
ers were over 50 years old. This statistic conveys little
probative information, however, because it does not
provide the age distribution of offenders in the “over 50”
category. Furthermore, it includes all types of tax offenses,
not just the particular tax fraud committed by Ms. Carter,
again without describing the distribution of ages among
those different tax offenses. Nor does the statistic convey
any other relevant measure of the data, like the mean,
median and mode. Because of the caution with which
we approach statistical analysis generally, and because
of the particularly imprecise nature of this statistic in
particular, we cannot conclude on this basis alone that
the district court clearly erred when it found that Ms.
Carter was not a tax offender of the age that “usually”
comes before the courts.9
9
We also note that the statistics regarding the age of offenders
whose primary offense category was money laundering might
be a more accurate benchmark than the statistics regarding those
who committed tax fraud. The Report defines a “primary offense
category” as “the offense code applicable to the count of con-
viction with the highest statutory maximum.” See Appendix A,
(continued...)
14 No. 07-2438
The Government additionally submits that Ms. Carter’s
age was an improper consideration because she is not
exceptionally elderly or infirm. It also submits that the
district court did not give a sufficient explanation for why
Ms. Carter’s age was significant. We cannot accept these
contentions. The district court’s discussion with counsel
and its statement of reasons make clear that it considered
Ms. Carter’s age to be a mitigating factor not because she
was infirm, but because her age set her apart from the
average offender and made it less likely that she would
commit these crimes again. See Sent Tr. at 30 (“I think, on
the other hand, we do have the age of Mrs. Carter, she
is 61, and that is not the age of your normal criminal that
comes before the Court for sentencing.”), 32 (“I think that
when one considers the age of—and I don’t mean to
suggest that [Ms. Carter] is an old lady, . . . but . . . I don’t
9
(...continued)
available at http://www.ussc.gov/ANNRPT/2006/appendix_
A.pdf. Ms. Carter’s primary offense category would be money
laundering because it carries the higher statutory maximum
term of imprisonment. Compare 18 U.S.C. § 1956 (setting a
statutory maximum of twenty years’ imprisonment for money
laundering), with 26 U.S.C. § 7206 (setting a statutory maximum
of three years’ imprisonment for tax fraud). Ms. Carter, whose
primary offense category would be money laundering, might
be more accurately compared to other offenders whose
primary offense also was money laundering than those offenders
whose worst offense was the comparatively lesser offense of tax
fraud. According to the Government’s statistics, for persons
whose primary offense involved money laundering, only 20.4
percent of offenders were over 50.
No. 07-2438 15
anticipate her breaking the law again.”). The likelihood
of recidivism is a proper sentencing consideration. 18
U.S.C. § 3553(a)(2)(C) (“The court, in determining the
particular sentence to be imposed, shall consider . . . the
need for the sentence imposed . . . to protect the public
from further crimes of the defendant.”). Indeed, we have
held specifically that a district court may properly con-
sider a defendant’s age as it relates to the possibility of
her committing crimes in the future. See United States v.
Holt, 486 F.3d 997, 1004 (7th Cir. 2007) (affirming a below-
guidelines sentence where the district court’s only
reason for the variance was that the defendant’s age made
it unlikely that the defendant again would be involved
in another violent crime). We cannot say that the dis-
trict court abused its discretion when it determined that,
based on her age and the totality of the circumstances,
Ms. Carter was unlikely to commit further crimes in the
future. Consequently, the court did not abuse its discretion
when it concluded that this factor counseled in favor of
a sentence significantly below an advisory guidelines
sentence. See id. (affirming a sentence of 200 months’
imprisonment, 62 months below the guidelines range,
where the variance was based solely on the offender’s
age); see also Omole, 523 F.3d at 698.
The Government’s second contention is that the dis-
trict court erred when it determined that Ms. Carter’s
offenses were not typical money laundering offenses. The
Government relies on the following statement by the
district court:
So, [Ms. Carter] violated the law, and the law she
violated was structuring and money laundering.
16 No. 07-2438
Having said this, this is obviously not a paradigm of
the money laundering cases.
The article in the sentencing guidelines by the
Commission indicates that Congress’ original purpose
was, in the context of organized crime, to prevent
proceeds from crimes being used to commit other
crimes.
Sent. Tr. at 29-30. The Government also relies on another
statement that the court made after it determined and
announced Ms. Carter’s sentence: “I think under all the
circumstances . . . [the sentence] does reflect the serious-
ness of the offense, I think it does reflect the characteristics
of the offense, which is not your paradigm instance of
money laundering.” Id. at 32-33.
The Government submits that there are three types of
money laundering: spending, concealment and promo-
tion. Ms. Carter committed two of those types of launder-
ing, specifically spending and concealment. The third
type, promotion, refers to money laundering designed
to promote an underlying illegal activity, for instance,
drug smuggling or racketeering. In the Government’s
view, the district court’s statement reflected an improper
assessment that Ms. Carter’s spending and concealment
were less serious types of money laundering than promo-
tion. The Government’s argument is twofold: first, that
the district court’s statement reflects a finding that con-
cealment and spending are less serious than promotion,
and second, that such a finding is improper because
Congress intended to punish identically promotion,
concealment and spending offenses. The Government
No. 07-2438 17
contends that the only proper consideration is “the extent
and magnitude of the laundering—not a non-existent
distinction between promotion, concealment, and spend-
ing.” Br. at 27. It contends that Congress intended to
punish identically promotion, concealment and spending,
as demonstrated by the statutory scheme, which sets the
same maximum term of imprisonment for promotion
and concealment. See 18 U.S.C. 1956.
In stating that Ms. Carter’s offense was not the typical
case of money laundering, the district court referred to a
1997 report by the Sentencing Commission. See Sen-
tencing Policy for Money Laundering Offenses, United
States Sentencing Commission (Sept. 18, 1997), available
at http://www.ussc.gov/r_congress/LAUNDER.PDF. That
report states that the “relatively high base offense levels
under the money laundering guidelines,” id. at 4, are
“inflexible and arbitrarily determined” without connec-
tion “to the seriousness of the defendant’s actual offense
conduct,” id. at 9. The Sentencing Commission con-
ducted a multi-year study on money laundering sentences
and determined that “money laundering sentences are
being imposed for . . . conduct that is substantially less
serious than the conduct contemplated when the money
laundering guidelines were first formulated.” Id. at 5. The
Commission concluded from its investigation that the
sentencing structure was generating disproportionate
penalties for violations of federal laws in that serious
misconduct was not being punished more severely than
less serious offenses and that the structure should be
recalibrated to reflect directly the seriousness of the
underlying offense. Id. at 10. The Commission noted a
18 No. 07-2438
particular concern regarding offenses involving the
concealment of the proceeds of drug trafficking, the
promotion of further criminal conduct, and the use
of foreign banks, international transactions or other
sophisticated forms of money laundering. See id. at 10 &
n.22.
Here, the district court’s consideration of whether
Ms. Carter’s offense was a typical money laundering
offense was within the bounds of permissible interpreta-
tion. A sentencing court is required to consider “the need
for the sentence imposed . . . to reflect the seriousness of
the offense, to promote respect for the law, and to provide
just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A).
The district court concluded that Ms. Carter’s offense
was not in the heartland of offenses that the Sentencing
Commission intended to address when it set the guide-
lines. Its conclusion is supported by the Sentencing Com-
mission’s policy statement. The Government’s conten-
tion that promotional and concealment offenses carry
the same maximum term of imprisonment is correct, but
unavailing. The district court, in its analysis, did not
compare worst-case offenders who simply had under-
taken different types of money laundering; instead, it
concluded that Ms. Carter’s offense, when viewed in
light of all the circumstances, was not of the sort that had
caused the guidelines to be set at the level at which
they had been set. The district court did not abuse its
discretion when it selected a sentence that “reflect[ed] the
seriousness of” and “provide[d] just punishment for the
offense” actually committed by Ms. Carter. See id.; see also
United States v. Walters, 87 F.3d 663, 672 (5th Cir. 1996)
No. 07-2438 19
(holding that a sentence reduction was not disproportion-
ate in light of the district court’s conclusion that the
guidelines overstated the seriousness of the offender’s
actual money-laundering conduct).
B.
In addition to the Government’s first two objections,
which relate to the district court’s primary explanation
of the sentence, the Government makes several other
arguments with respect to the district court’s general
sentencing considerations.
The Government’s third contention is that Ms. Carter’s
reliance on her divorce attorney’s advice was not a solid
ground for mitigating her sentence because the attorney
did not advise her to protect illegally-obtained funds.
At sentencing, the district court stated:
I do think that she probably did freak out when she
found out that her husband was basically on his way to
prison . . . and I think she acted to a certain extent out
of an attempt to protect herself . . . I think her divorce
lawyer said that he had suggested that that money
be put in her name. . . . So, her actions . . . were not
wholly not understandable.
Sent. Tr. at 30-31. The court also said:
I believe she did not receive good advice. The advice
would have been to don’t do anything, this money is
tainted money. Whatever advice she received, that
wasn’t it, and she certainly didn’t follow it.
Sent. Tr. at 31.
20 No. 07-2438
The Government contends that the divorce attorney’s
advice is not a mitigating factor because the attorney was
not fully informed. The divorce attorney testified that he
told Ms. Carter on March 28, 2002, “to make certain
that you preserve the liquidity for as long as you can
because I don’t want the spouse to in any way try to take
the moneys and freeze her out or starve her out.” Tr. at 683,
689; see also id. at 690 (“Q. So you told her to protect [the
liquid] assets, right? A. Yes.”). He also testified that Ms.
Carter did not tell him that some of the couple’s liquid
assets were the proceeds of Robert’s fraud. Id. at 690 (“[I]t
never came up about any type of fraud whatsoever.”). The
attorney further stated that he would not have advised
her to transfer funds that were the proceeds of fraud. Id.
at 690-91.
The Government contends that the “district court did not
consider that [Ms. Carter’s] divorce attorney testified that,
if [she] had told him about the source of the money, he
never would have suggested that she ‘protect’ (notably
different from ‘conceal’) her assets.” Appellant’s Br. at 28.
The district court stated that her actions “were not
wholly not understandable,” Tr. at 31, based in part on
the conversations that Ms. Carter had with her attorney.
Nothing in the record suggests that the court miscon-
strued her attorney’s testimony or his advice to her. Nor
does the record suggest that the district court put undue
weight on this consideration. 1 0 The district court acted
10
The district court stated: “I believe she did not receive good
advice. The advice would have been to don’t do anything, this
(continued...)
No. 07-2438 21
within the permissible bounds of discretion in con-
sidering evidence of the effect the advice had on Ms. Carter
as a factor affecting “the nature and circumstances of the
offense” she committed. See 18 U.S.C. § 3553(a)(1).
The Government’s fourth contention is that the district
court’s comparison of Ms. Carter’s sentence with
her husband’s sentence was impermissible because Ms.
Carter was not similarly situated to her husband. Here, it
presumably relies on the following statement by the
district court:
Now, in considering what an appropriate sentence
in this case is, it does seem to me that it would be
entirely improper to give her a sentence that was
similar, or certainly higher, than what her husband got.
Her husband was the source of the illegal funds. She
did benefit from them though, there is no question
about that.
Sent. Tr. at 30. After announcing Ms. Carter’s sentence, the
district court also stated: “I don’t anticipate her breaking
the law again, and I think that certainly a sentencing
within the guidelines would have been [disparate] from
her husband’s sentence.” Id. at 33.
The Government contends that Ms. Carter is not simi-
larly situated to her husband because, unlike him, she
did not plead guilty but instead went to trial. It also
10
(...continued)
money is tainted money. Whatever advice she received, that
wasn’t it, and she certainly didn’t follow it.” Sent. Tr. at 31.
22 No. 07-2438
contends that, unlike her husband who pleaded guilty,
Ms. Carter lied on the stand and received a two-point
enhancement for obstruction of justice. At trial, however,
the Government agreed that Robert’s offenses were
much worse than Ms. Carter’s offenses. Tr. at 1042
(“I am not even here to tell [you that] she is wor[s]e
t[h]an Robert Carter. In fact she is not. Robert Carter is
much worse than she is.”).
The district court’s consideration of this factor was
proper. See Gall, 128 S. Ct. at 600 (holding that a sen-
tencing court may properly consider “the need to avoid
unwarranted similarities among other co-conspirators
who were not similarly situated”). Additionally, the
court did not put unreasonable weight on the compara-
tive sentences of the two; the court did not base the
extent of the variance from the guidelines solely on the
differences between Ms. Carter and Robert. See Wachowiak,
496 F.3d at 748. Nor was it unaware that some aspects
of Ms. Carter’s circumstances and offenses were different
from—and possibly worse than—Robert’s situation; the
court knew that, in contrast with Robert, Ms. Carter had
not accepted a plea agreement and had been found guilty
by a jury. In sum, the court reasonably compared Ms.
Carter’s conduct and circumstances to Robert’s conduct
and circumstances. Compare Gall, 128 S. Ct. at 600 (“[I]t is
perfectly clear that the District Judge considered . . . the
need to avoid unwarranted similarities among other
[defendants] who were not similarly situated.”).
We cannot say that its consideration of this factor was
erroneous.
No. 07-2438 23
The Government’s fourth objection relates to the dis-
trict court’s statement that Ms. Carter “freaked out when
she found out that her husband was basically on his way
to prison,” and that her “actions were over a relatively
short period of time.” Sent. Tr. at 30, 32. The Government
contends that this conclusion was factually erroneous
because Ms. Carter committed tax fraud on her 1999
and 2000 returns, although her concealment money
laundering occurred primarily over the forty days between
March 29 and May 7, 2002.1 1 Tr. at 577, 594-602. It submits
that this factor was, at most, a very weak mitigating factor.
We first note that the Government itself emphasized the
short time frame in which Ms. Carter’s money laundering
occurred. Tr. at 1010 (“This chart and the indictment
summarize 24 transactions in 60 days. If you take out
the September transaction, it is just 30 days.”). A fair
reading of the district court’s remarks would assume
that its consideration of this factor was limited to the
money laundering offenses which, as we have noted
earlier, were most operative in setting the offense level.
The criminal activity of which Ms. Carter was convicted
did involve fraudulent tax activity in 1999 and 2000, in
addition to her money laundering offenses in 2002. It is
doubtful, however, that the court would have considered
this factor to be a substantial one in determining the
11
One transaction occurred outside that time frame, on Septem-
ber 18, 2002, and involved a wire transfer of funds from an
account in Ms. Carter’s name to one held jointly by her and
her husband.
24 No. 07-2438
sentence for those offenses. To the extent that the dis-
trict court erred when it concluded that Ms. Carter’s tax
fraud offenses, as opposed to the money laundering
offenses, occurred over a relatively short period of time,
the other reasons offered by the district court for the
sentence imposed assure us that this error does not alone
render the district court’s conclusion unreasonable. See
Wachowiak, 496 F.3d at 754 (holding that even if a judge
overstates mitigating factors or considers “normal inci-
dents” of an offense, if the consideration is “just one of
many reasons the judge gave for [his] below-guidelines
sentence,” the sentence will be affirmed); see also United
States v. Cherry, 487 F.3d 366, 372 (6th Cir. 2007) (holding
that a “large downward variance” was not unreasonable
“in light of the other reasons offered by the district court
for the sentence imposed,” even where the court errone-
ously concluded that the defendant’s crimes had
occurred in a short period of time).
The Government’s fifth contention is that the district
court impermissibly considered Ms. Carter’s expectation
that she would not get a lengthy sentence. It points to a
statement by the district court at sentencing:
I believe also that she probably—I am certain she
didn’t anticipate the consequences of her actions. She
may have known they were illegal, but certainly
didn’t expect them to be the extent where she would
be standing here possibly subjected to a sentence of
87 months.
Sent. Tr. at 31. The Government contends that this consid-
eration defies one goal of section 3553(a)—promoting
respect for the law.
No. 07-2438 25
The Government’s argument puts more weight on this
comment than it ought to have to bear. The statement
was made during the court’s discussion of Ms. Carter’s
decision to ensure that the funds from the marriage be
in her name rather than her husband’s. In context, the
district court was expressing its belief that, although she
knew that such unilateral action with respect to tainted
funds was illegal, she did not appreciate the seriousness
of the offense. Tr. at 32.
Finally, the Government contends that the district
court erred because its reasons for the reduced sentence
did not apply to the tax fraud convictions, which alone
merited a longer sentence than Ms. Carter received. In
this respect, the Government relies on its contention that
Ms. Carter’s age was standard for tax offenders. As we
have stated earlier, this contention is without merit.
Moreover, the district court’s determination that
Ms. Carter was unlikely to commit these crimes again
applies to the tax fraud convictions; consequently, we
cannot expect that the district court would have im-
posed a high sentence even if these crimes had been the
only ones charged. The court stated that the sentence
was sufficient to “protect the public from further crimes
from this defendant,” and that the court did not “anticipate
her breaking the law again.” Sent. Tr. at 32-33. These
factors were properly considered by the district court and
reflect the district court’s serious consideration of section
3553(a), including its stated purpose of “impos[ing] a
sentence sufficient, but not greater than necessary . . . to
reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the of-
26 No. 07-2438
fense.” 18 U.S.C. § 3553(a)(2)(A). Furthermore, the Gov-
ernment’s arguments fail to take account of the fact that
Ms. Carter was sentenced to 36 months’ supervised release
in addition to her sentence of 24 months’ imprisonment.
Notably, the Supreme Court recently held that a term
of supervised release involves a “substantial restriction
of freedom.” Gall, 128 S. Ct. at 595 (quotation omitted).
C.
In sum, the sentencing judge’s articulated reasons for
the variance from the advisory guidelines range assure
us that the sentencing process was a reasoned one. See
Omole, 523 F.3d at 698. The court’s justifications are
sufficient to explain the extent of the variance from the
advisory guidelines range. The Government’s arguments
that the sentence is unreasonable give too little effect to
the congressional command that a sentencing court
impose a sentence “sufficient, but not greater than neces-
sary,” to comply with section 3553(a)(2). The issue here
is whether, as it pertains to this defendant and the
offenses she committed, the sentence comports with
the purposes of section 3553(a)(2)(A). In imposing the
24-month sentence, the district court stressed repeatedly
the seriousness of Ms. Carter’s offense and considered
her as an individual entitled to an individualized sen-
tence. See Wachowiak, 496 F.3d at 748, 754. It concluded
that Ms. Carter’s individual characteristics warranted a
sentence significantly below the advisory guidelines
range. We cannot say that the court abused its discretion
when it concluded that this sentence reasonably reflects
No. 07-2438 27
the seriousness of the offense, promotes respect for the
law and provides just punishment for the offense. See id.;
18 U.S.C. § 3553(a)(2)(A). The record makes clear that the
district court did not select the sentence arbitrarily, base
the sentence on impermissible factors, fail to consider
pertinent section 3553(a) factors or give an unreasonable
amount of weight to any pertinent factor. Its explanation
for its sentence was sufficient to allow for meaningful
appellate review and to promote the perception of fair
sentencing and its reasoning adequately justified the
extent of the variance from the advisory guidelines
range. See Omole, 523 F.3d at 697; see also Gall, 128 S. Ct. at
597. We might have adhered to the guidelines or imposed
a somewhat harsher sentence had we been sitting as
district judges. See Gall, 128 S. Ct. at 597. Our review
is not de novo, however. Our authority is simply to
determine if the sentence is legal and, in the circum-
stances of the case, reasonable in light of the statutory
mandate contained in 18 U.S.C. § 3553(a). Given those
limitations on our authority, the sentence of the district
court must stand.
Conclusion
Accordingly, for the reasons set forth in this opinion,
we affirm the judgment of the district court.
A FFIRMED
8-19-08