United States v. Sarah Godsey , 690 F.3d 906 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 11-2971
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Sarah Ann Godsey, also known as Sarah Marcum,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: March 15, 2012
Filed: September 5, 2012
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Before WOLLMAN and COLLOTON, Circuit Judges, and HICKEY,1 District Judge.
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HICKEY, District Judge.
Sarah Ann Godsey pleaded guilty to one count each of bank fraud, access-
device fraud, and aggravated identity theft under 18 U.S.C. §§ 1344; 1029(a)(5); and
1
The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas, sitting by designation.
1028A(a)(1), respectively. The district court2 sentenced her to a total of 54 months’
imprisonment. Godsey appeals her sentence. We affirm.
I.
Godsey was a sales assistant at KBK Inc.’s (“KBK”) Cedar Rapids, Iowa office
from June 2005 through March 2007. Her duties included preparing checks for her
supervisors’ signatures. Over a 16-month period, Godsey embezzled money from
KBK’s checking account at US Bank by forging checks and making unauthorized
electronic transfers. Godsey concealed the fraud by covering her withdrawals with
funds transferred from other KBK credit card accounts. Godsey also opened several
credit card accounts and increased KBK’s credit limit to $120,000 by using her
supervisor’s name, birthdate, and social security number. She linked those credit cards
to her personal online account with PayPal Inc. (“PayPal”). Godsey used the credit
cards to make personal purchases and to pay off her US Bank embezzlement. She
further concealed her fraud by mailing altered KBK bank statements to KBK’s New
York office.
When KBK and local police discovered the scheme in early 2007, Godsey
provided false explanations and forged PayPal documents to hinder the investigation.
Godsey also gave false statements to an FBI agent working on the case. A grand jury
indicted her on 33 counts of bank fraud, mail fraud, access-device fraud, and
aggravated identity theft. Pursuant to a plea agreement, Godsey pleaded guilty to one
count of bank fraud, one count of access device fraud, and one count of aggravated
identity theft. At sentencing, the district court imposed a two offense level increase
under § 3B1.3 of the United States Sentencing Guidelines for abusing a position of
trust and denied Godsey’s request for an adjustment downward under § 3E1.1 for
2
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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acceptance of responsibility. The district court found the total offense level on the two
fraud counts to be level 19, criminal history category I, with an advisory guideline
range of 30 to 37 months. On the aggravated identity theft count, the district court
calculated the guideline range as 24 months pursuant to 18 U.S.C. § 1028A, which
mandates a sentence of two years to run consecutive with other terms of
imprisonment. The district court denied Godsey’s motion to vary below the guideline
range under 18 U.S.C. § 3553(a) and imposed a total sentence of 54 months–two
concurrent 30 month sentences for the fraud counts and a consecutive 24 month
sentence for aggravated identity theft. The district court further imposed a 5-year term
of supervised release, a $300 special assessment, and restitution in the amount of
$120,189.22.
II.
Godsey appeals three aspects of her sentence. First, she contends that the
district court erred by applying to her sentence a two offense level increase for
abusing a position of trust under U.S.S.G. § 3B1.3. Second, Godsey contends that the
district court erred by denying her an adjustment downward for acceptance of
responsibility under U.S.S.G. § 3E.1.1. Finally, Godsey contends that the district court
erred by denying her a downward variance in light of her family obligations, alleged
mental illness, and lack of criminal history under 18 U.S.C. § 3553(a).
A.
Godsey first argues that the district court erred in applying to her sentence an
upward adjustment for abusing a position of trust. U.S.S.G. § 3B1.3 (2011).
Improperly calculating the guideline range is a significant procedural error. United
States v. Hagen, 641 F.3d 268, 270 (8th Cir. 2011). “We review the district court’s
construction and application of the guidelines de novo and its factual findings for clear
error.” United States v. Bates, 548 F.3d 1105, 1108 (8th Cir. 2009).
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1.
Section 3B1.3 of the guidelines provides for a two offense level increase “[i]f
the defendant abused a position of public or private trust, or used a special skill, in a
manner that significantly facilitated the commission or concealment of the offense[.]”
U.S.S.G. § 3B1.3. Application Note 1 of that section defines “public or private trust”
as:
1. Definition of “Public or Private Trust”.—“Public or private trust”
refers to a position of public or private trust characterized by
professional or managerial discretion (i.e., substantial discretionary
judgment that is ordinarily given considerable deference). Persons
holding such positions ordinarily are subject to significantly less
supervision than employees whose responsibilities are primarily
non-discretionary in nature. For this adjustment to apply, the
position of public or private trust must have contributed in some
significant way to facilitating the commission or concealment of
the offense (e.g. by making the detection of the offense or the
defendant’s responsibility for the offense more difficult).
U.S.S.G. § 3B1.3 Application Note 1.
Godsey argues that the district court erroneously applied Application Note 2(B) of §
3B1.3. Application Note 2(B) states in relevant part:
2. Application of Adjustment in Certain
Circumstances.–Notwithstanding Application Note 1, or any other
provision of this guideline, an adjustment under this guideline
shall apply to the following . . .
(B) A defendant who exceeds or abuses the authority of his or
her position in order to obtain, transfer, or issue unlawfully,
or use without authority, any means of identification.
U.S.S.G. § 3B1.3 Application Note 2(B).
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The district court applied § 3B1.3 on the basis that Godsey abused the authority
of her position in order to use without authority her supervisor's means of
identification. Godsey argues that because the district court did not first establish
whether she occupied a “position of public or private trust” under Application Note
1, it should never have reached Application Note 2(B). In response, the government
contends that Application Note 2(B) may be applied independently of Application
Note 1 because Application Note 2 clearly states that it applies “[n]otwithstanding
Application Note 1….”
Godsey’s argument requires us to interpret the guidelines. “‘We employ basic
rules of statutory construction when interpreting the Guidelines.’” United States v.
Davis, 668 F.3d 576, 577 (8th Cir. 2012) (quoting United States v. Hackman, 630 F.3d
1078, 1083 (8th Cir. 2011)). Unless an Application Note is clearly erroneous or in
conflict with the Constitution, a federal statute, or the guideline itself, the note is
binding on a district court. Hackman, 630 F.3d at 1083 (quoting United States v.
Smith, 282 F.3d 1045, 1047 (8th Cir. 2002)). Godsey does not argue that the
Application Note in question suffers any such deficiency. “‘We therefore turn to the
ordinary meaning of the terms to guide our review’” of the Application Note at issue.
Id. (quoting United States v. Parker, 267 F.3d 839, 847 (8th Cir. 2001)).
Generally, under U.S.S.G. § 3B1.3 the government must prove (1) that the
defendant was in a position of public or private trust; and (2) that he used the position
to significantly facilitate the commission or concealment of the offense. United States
v. Miell, 661 F.3d 995, 998 (8th Cir. 2011). We now face the question of whether
Application Note 2(B) provides an independent basis for applying an adjustment
under § 3B1.3. We hold that is does.
The Note’s own terms sever it from other § 3B1.3 requirements. Application
Note 2 states that “[n]otwithstanding Application Note 1 or any other provision of this
guideline, an adjustment under this guideline shall apply to the following[.]”
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“Notwithstanding” means “in spite of.” Notwithstanding, Black’s Law Dictionary
1091 (7th ed. 1999). Application Note 2(B), therefore, applies in spite of Note 1. A
failure to meet the definition of Application Note 1 does not affect whether
Application Note 2(B) applies.
The plain language of Application Note 2(B) thus compels the conclusion that
it applies even when Application Note 1 does not. Accordingly, we find that
Application Note 2(B) is an independent basis for applying an adjustment under §
3B1.3. See United States v. Abdelshafi, 592 F.3d 602, 611 (4th Cir. 2010).
2.
Godsey next argues that she is not covered by the language in Application Note
2(B). She asserts that all of the example applications given in Application Note 2(B)
involve identity theft that victimizes individuals outside the defendant’s place of
employment. Because Godsey’s identity theft victimized only her supervisor, she
argues that Application Note 2(B) does not apply to her. The government argues that
the Note’s application should not be limited by its stated examples.
Note 2(B) provides the following example applications:
(i) An employee of a state motor vehicle department who exceeds or
abuses the authority of his or her position by knowingly issuing a driver's
license based on false, incomplete, or misleading information; (ii) a
hospital orderly who exceeds or abuses the authority of his or her
position by obtaining or misusing patient identification information from
a patient chart; and (iii) a volunteer at a charitable organization who
exceeds or abuses the authority of his or her position by obtaining or
misusing identification information from a donor's file.
U.S.S.G. § 3B1.3 Application Note 2(B).
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The first victim mentioned in the examples is presumably the public. The
second victim is a patient, and the third is a charitable donor. While none of the stated
examples involve the employment relationship in Godsey's case, the express rule of
Application Note 2(B) does not discuss victims. To meet the Note’s definition, a
defendant need only to have “exceed[ed] or abuse[d] the authority of his or her
position” in order to unlawfully use any means of identification. Id. The act of using
identification is what is pertinent–not who is victimized. We are reluctant to conclude
that the Sentencing Commission intended Application Note 2(B)'s examples to add
an element not present in the plain language of the Note. For these reasons, we find
that Application Note 2(B) is not limited by its stated examples and that Godsey’s
actions fall within the field of offenses contemplated by the Note.
B.
Godsey next argues that the district court erred by denying her an adjustment
under § 3E1.1 for acceptance of responsibility. We review the district court’s
interpretation of the guidelines de novo and its factual findings underlying a denial of
an acceptance of responsibility adjustment for clear error. United States v. King, 559
F.3d 810, 814 (8th Cir. 2009).
The district court imposed on Godsey an upward adjustment for obstruction of
justice, which “ordinarily indicates that the defendant has not accepted responsibility
for his criminal conduct.” U.S.S.G. § 3E.1.1 Application Note 4. “There may,
however, be extraordinary cases in which adjustments under . . . [§] 3E1.1 may
apply.” Id. Having received an adjustment for obstruction of justice, Godsey must
therefore show that it was clear error for the district court not to find her case
“extraordinary.”
“Not every defendant can present an extraordinary case deserving of acceptance
of responsibility merely by pleading guilty and ceasing to obstruct justice.” United
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States v. Honken, 184 F.3d 961, 972 (8th Cir. 1999). A guilty plea and an absence of
post-plea obstructive conduct cannot alone make an extraordinary case. Id. We have
described the analysis for determining whether an acceptance of responsibility
adjustment is appropriate in the presence of an obstruction adjustment:
[T]he district court should consider the timing and nature of the
defendant’s obstructive conduct, the degree of his acceptance of
responsibility, whether his obstruction of justice was an isolated and
early incident, whether he voluntarily terminated his obstructive conduct,
whether he admitted and recanted his obstructive conduct, and whether
he assisted in the investigation of his and others’ offenses.
United States v. Stoltenberg, 309 F.3d 499, 500 (8th Cir. 2002) (citation
omitted).
While Godsey pleaded guilty, accepted responsibility, and showed remorse for
her actions, her obstruction was significant. She provided false documents and
statements to investigators and to KBK early in the investigation. Moreover, she again
lied to investigators in March 2009, nearly two years after first submitting the false
documents and statements. Thus, based on the record, we cannot conclude that the
district court clearly erred by denying Godsey an acceptance of responsibility
adjustment.
C.
Godsey last argues that the district court misapplied the 18 U.S.C. § 3553(a)
factors by denying her a downward variance in light of her family obligations, alleged
mental illness, and lack of criminal history. Godsey argues that denying the variance
rendered her sentence unreasonable.
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“We review the substantive reasonableness of a sentence under a deferential
abuse-of-discretion standard.” United States v. Morais, 670 F.3d 889, 893 (8th Cir.
2012) (citing Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586 (2007)). “[W]e
presume that a sentence imposed within the advisory guideline range is substantively
reasonable.” Id. (citing United States v. Ruelas–Mendez, 556 F.3d 655, 657 (8th Cir.
2009)). A district court is entitled to substantial discretion in weighing § 3553(a)
factors. Id. A mechanical recitation of factors at sentencing is not required. United
States v. Diaz–Pellegaud, 666 F.3d 492, 504 (8th Cir. 2012). Rather, “it simply must
be clear from the record that the district court actually considered the § 3553(a) factors
in determining the sentence.” Id. (quoting United States v. Walking Eagle, 553 F.3d
654, 659 (8th Cir. 2009) (citation omitted)).
The district court stated that it determined Godsey’s sentence “after carefully
considering all the arguments made for variance, both written and oral, and the
objection thereto voiced by the United States….” The sentencing hearing transcript
reveals the district court’s careful consideration of each of the grounds on which
Godsey sought a downward variance. Specifically, the district court noted that
Godsey’s daughter’s health was improving, that Godsey’s mental health was only a
situational depressive disorder, and that her crimes’ long time span and her
obstruction of justice both mitigated against varying below the guideline range. We
find that the district court did not abuse its discretion in denying Godsey a downward
variance.
III.
The judgment of the district court is affirmed.
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