United States v. Anderson, Donnella ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 2, 2007
Decided October 18, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 07-1197
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 06-CR-291-1
DONNELLA ANDERSON,
Defendant-Appellant. Ronald A. Guzman,
Judge.
ORDER
Donnella Anderson pleaded guilty to causing false claims for income-tax
refunds to be submitted to the Internal Revenue Service. See 18 U.S.C. § 287. The
district court sentenced her to 18 months’ imprisonment, at the low end of the
guidelines range. On appeal, Anderson argues that the district court erroneously
presumed that a prison term within the guidelines range was the appropriate
sentence. She also argues that the court did not sufficiently explain its choice of
sentence. Both contentions are without merit.
Anderson operated Bestway Tax Services out of her home in Chicago, Illinois.
She prepared federal income-tax returns for clients, and offered refund-anticipation
loans through an arrangement with a bank. Bestway would make the loan to the
No. 07-1197 Page 2
client through the bank, taking a portion as a preparation fee. The IRS would then
deposit the refund directly into Bestway’s account.
Between January and May 2003, Anderson knowingly filed 25 fraudulent
income-tax returns on behalf of her clients. Anderson altered or created false W-2s
to increase the amount of income her clients earned, and listed fraudulent
deductions and credits, all with an eye toward increasing the refund she would
receive. There is no evidence that Anderson’s clients were aware of the false filings.
In total Anderson claimed more than $114,375 in false refunds. Anderson pleaded
guilty to four counts, each arising from a different return.
The probation officer calculated a guidelines imprisonment range of 27 to 33
months. Before sentencing, however, Anderson filed a memorandum contending
that she should not be imprisoned at all. Anderson argued that if she was
imprisoned there would be no one who could “truly” care for her three minor boys
(at that time, ages 12, 14, and 15), despite the fact that she is married and her
husband lives with her and her sons. Anderson asserted that the boys could not
afford to lose their primary caretaker, and that the family could not continue
sending them to private school with her in prison. Her husband submitted a letter
asserting that he would have a difficult time raising the boys without Anderson and
that it would be a significant hardship if she was incarcerated.
At sentencing, in November 2006, the district court acknowledged receiving
Anderson’s memorandum. Counsel for both sides addressed the court about the
sentencing factors in 18 U.S.C. § 3553(a). The district court stated that it had
reviewed the presentence report and the written submissions of both attorneys, that
it was familiar with the facts of the case from the written plea agreement, and that
it took these matters into consideration. The district court rejected the probation
officer’s proposed finding that Anderson had not accepted responsibility,
recalculated the guidelines range as 18 to 24 months, and explained that it settled
on a sentence of 18 months “[b]ased on all of the information, the totality of the
circumstances.”
Months later, before she began serving her sentence, Anderson moved to stay
her surrender date pending the resolution of this appeal. On March 1, 2007, the
district court conducted a hearing on Anderson’s motion. At that time, the Supreme
Court had not announced its decision in Rita v. United States, 127 S. Ct. 2456
(2007), and Anderson argued that the outcome could affect this appeal. The district
court denied the motion, stating:
I remember this case and I think the sentence was extremely
fair. This is not a harsh sentence. It’s not beyond—I mean, I have
difficulty believing that the end result for your client is going to be any
No. 07-1197 Page 3
different than it is now and, if so, all we’re doing is wasting time, hers
and ours.
....
If I thought you had an appeal in which there was a substantial
issue as to guilt or innocence, it would be a different story, but that
doesn’t exist here and I don’t think, in the grand scheme of things,
this motion is gaining anything of substantial value for your client
even if we assume all the most favorable outcome to your client.
....
I guess what I’m telling you is that I don’t see the sentence
being any different. Even if I do not indulge in the presumption of
reasonableness to the Guideline range and even if I do not consider it
necessary to prove an extraordinary circumstance to move outside the
Guideline range, it’s not going to change.
....
And if I look at the Guidelines just as a factor to consider,
which the Supreme Court says is what we have to do, the sentence
would still be the same. . . .
Anderson makes two arguments. First, she contends that the district court
erroneously presumed that it should impose a sentence within the guidelines
imprisonment range. Second, Anderson argues that the district court failed to
articulate sufficient reasons for the sentence imposed. Whether a district court
followed the correct procedures for imposing sentence under the advisory guidelines
regime is a question of law we review de novo. United States v. Tyra, 454 F.3d 686,
687 (7th Cir. 2006).
Anderson’s first contention is not supported by the record. At no point at
sentencing did the district court state that it was imposing a prison term within the
guidelines because it believed such a sentence to be presumptively reasonable.
Anderson attempts to side-step this fact by first suggesting that the court’s failure
to elaborate on its choice of sentence, coupled with the selection of a term within the
guidelines range, must mean that the court presumed that a within-range sentence
should be imposed. But Anderson offers no authority for this inference. To the
contrary, little explanation is required for a sentence within the range, Rita, 127
S. Ct. at 2468; United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005), so the
inference Anderson proposes would be nonsensical. More likely, the district judge
No. 07-1197 Page 4
reasoned that little explanation was required because he found this case to be
typical and, in light of the statutory factors, rested his reasoning upon that of the
Sentencing Commission. See Rita, 127 S. Ct. at 2468.
Anderson’s fallback position is that statements made by the district court
during the hearing on her motion to stay the surrender date necessitate a finding
that the court had engaged in a presumption of reasonableness at sentencing. But
rather than evidencing that the court indulged in an impermissible presumption at
sentencing, the judge’s comments reflect his effort to cast himself in the role of
appellate judge to assess whether Rita, which was still pending in the Supreme
Court, might affect our review of Anderson’s sentence. The district court simply
was evaluating whether Anderson had an appellate argument worthy of delaying
her surrender date even further. Indeed, the district judge stated that the Supreme
Court had mandated that the guidelines be viewed “just as a factor to consider,”
which undercuts Anderson’s argument that the court at sentencing had presumed
that a sentence within the range should be imposed. At any rate, statements made
by the district court in March 2007 shed very little light on whether the district
court applied a presumption of reasonableness at Anderson’s sentencing in
November 2006.
Also without merit is Anderson’s contention that the district court did not
sufficiently explain its sentence. In Rita, the Supreme Court noted that lengthy
explanation usually will be unnecessary where the judge decides to impose a
sentence within the guidelines. Rita, 127 S. Ct. at 2468. Often the record will
evidence that the district court saw nothing atypical about the defendant’s situation
and relied on “the Commission’s own reasoning that the Guidelines sentence is a
proper sentence (in terms of § 3553(a) and other congressional mandates) in the
typical case.” Id. That is what happened here.
Anderson’s sole argument for a sentence below the guidelines range was that
her family will suffer from her absence. But there is nothing unusual about familial
relationships suffering as the result of criminal activity and subsequent
incarceration. See United States v. DeVegter, 439 F.3d 1299, 1307 (11th Cir. 2006);
United States v. Jaderany, 221 F.3d 989, 996 (7th Cir. 2000); United States v.
Wright, 218 F.3d 812, 815 (7th Cir. 2000); United States v. Carter, 122 F.3d 469, 474
(7th Cir. 1997); United States v. Canoy, 38 F.3d 893, 907 (7th Cir. 1994). That is
the norm, and it is why the Sentencing Commission concluded that family
circumstances ordinarily are not relevant to the choice of sentence. See U.S.S.G.
§ 5H1.6. As the Commission has explained, “the fact that the defendant’s family
might incur some degree of financial hardship or suffer to some extent from the
absence of a parent through incarceration is not in itself sufficient as a basis for
departure because such hardship or suffering is of a sort ordinarily incident to
incarceration.” U.S.S.G. § 5H1.6 cmt. 1(B)(ii). And though after United States v.
No. 07-1197 Page 5
Booker, 543 U.S. 220 (2005), a district court has greater discretion in fashioning an
appropriate sentence, a reason for sentencing outside the range that was
questionable before Booker is still suspect after Booker. United States v. Boscarino,
437 F.3d 634, 638 (7th Cir. 2006).
The level of detail required to explain a particular sentence is proportional to
the gravity of the arguments raised by the party requesting a different sentence.
United States v. Spano, 447 F.3d 517, 519 (7th Cir. 2006). Anderson did not
identify anything unusual about her family situation, and because she presented no
serious argument for a lower sentence, the district judge was not required to say
more than he did. Rita, 127 S. Ct. at 2468; United States v. Gama-Gonzalez, 469
F.3d 1109, 1111 (7th Cir. 2006). The district court did exactly what the Supreme
Court in Rita said would be sufficient in the typical case. Anderson’s case is typical.
Her sentence is therefore
AFFIRMED.