United States v. Bobbie Hermes ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-1150
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri
Bobbie Lee Hermes, also known as *
Bobbie Lee Wheat, also known as * [UNPUBLISHED]
Bobbie Lee Collins, also known as *
Bobbie Lee Boyanton, *
*
Appellant. *
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Submitted: December 26, 2001
Filed: January 15, 2002
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Before McMILLIAN, BRIGHT, and FAGG, Circuit Judges.
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PER CURIAM.
Bobbie Lee Hermes appeals the sentence imposed on her by the District Court
for the Western District of Missouri1 after she pleaded guilty to program fraud in
violation of 18 U.S.C. §§ 666(a)(1)(A), 2. The district court sentenced Hermes to 24
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
months imprisonment and 3 years supervised release, and to pay $54,584.75 in
restitution. Her counsel has moved to withdraw and filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967). For reversal, counsel argues that the district court
erred in imposing a five-level increase in Hermes’s offense level under U.S.S.G.
§ 2F1.1(b)(1)(F). Hermes has filed a pro se supplemental brief raising claims of
ineffective assistance of counsel, suggesting that she should have received an
acceptance-of-responsibility reduction, and complaining that the district judge should
have recused himself. For the reasons discussed below, we affirm the judgment of
the district court.
Specifically, we conclude that the court did not commit clear error in
determining that the amount of loss was between $40,000 and $70,000 based on the
testimony of the chief financial officer of the defrauded company. See United States
v. Coon, 187 F.3d 888, 899 (8th Cir. 1999) (clear error does not exist where
determination is plausible in light of whole record), cert. denied, 529 U.S. 1017
(2000). The court also did not clearly err in denying an acceptance-of-responsibility
reduction because Hermes consistently disputed the extent of her misconduct. See
United States v. Lim, 235 F.3d 382, 385 (8th Cir. 2000) (standard of review);
U.S.S.G. § 3E1.1, comment. (n.1(a)). Finally, Hermes waived any objection to
having Judge Sachs preside, by representing in open court--after disclosure of the
potential conflict--that she was not seeking a recusal, see 28 U.S.C. §§ 455(e), and
her ineffective-assistance claims are not properly raised in this direct criminal appeal,
see United States v. Embrey, 250 F.3d 1181, 1183-84 (8th Cir. 2001).
Accordingly, we affirm and grant counsel’s motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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