United States v. Carla Alexander ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2305
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Southern
v. * District of Iowa.
*
Carla Jane Alexander, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 13, 2006
Filed: March 20, 2006
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Before WOLLMAN, FAGG, and RILEY, Circuit Judges.
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PER CURIAM.
Carla Jane Alexander pleaded guilty to concealing work activity from the Social
Security Administration. Alexander did not stipulate to an amount of loss. At
Alexander’s post-Booker sentencing, the district court* took evidence on the amount
of loss and sentenced Alexander below the advisory guidelines range to a year and a
day in prison and three years of supervised release.
*
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
Alexander appeals asserting her Fifth and Sixth Amendment rights were
violated when the district court found the amount of loss by a preponderance of the
evidence. Because the district court applied the guidelines in an advisory manner, the
court was only required to find the amount of loss by a preponderance of evidence.
United States v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir. 2005) (en banc). Contrary to
Alexander’s assertion, the district court could take evidence during the sentencing
hearing and find the amount of loss based on that evidence. United States v.
Townsend, 408 F.3d 1020, 1022 (8th Cir. 2005).
Alexander also contends the court’s amount-of-loss finding is too high.
According to Alexander, the district court should have considered evidence tending
to contradict the Government’s claim that Alexander would not have qualified for
disability payments absent her concealment of work activity, and did not properly
consider how the social security administration determines eligibility for disability
payments in the face of reported work activity. We review the district court’s
calculation of loss for clear error, United States v. Craiglow, 432 F.3d 816, 820 (8th
Cir. 2005), and find none. Having carefully reviewed the record, we conclude the
district court’s method for calculating the amount of loss was reasonable. Id. A
government agent testified about the amount of benefits paid and Alexander’s
ineligibility for any of the benefits given her substantial gainful activity. The court
permitted Alexander to cross-examine the witness about partial eligibility for benefits,
and merely warned counsel his line of questioning was inconsistent with Alexander’s
plea agreement.
We thus affirm Alexander’s sentence.
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