United States v. Ane Plate

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13928
________________________
D.C. Docket No. 6:15-cr-00084-GKS-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANE PLATE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 5, 2016)
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MARTIN and JORDAN, Circuit Judges, and VINSON, ∗ District Judge.
VINSON, District Judge:
This case raises a common dilemma in sentencing defendants for financial
crimes: balancing the payment of restitution for the victims against the length of
incarceration for the defendant. Ane Plate pled guilty to embezzlement by a bank
officer or employee, in violation of 18 U.S.C. § 656. When she was unable to pay
full restitution, she was sentenced to 27 months in prison. Plate argues on appeal
that the sentence violated her constitutional rights and that it was both procedurally
and substantively unreasonable. After careful review, and with the benefit of oral
argument, we hold that the sentence was substantively unreasonable and that a new
sentencing is required.
I.
Born in American Samoa, Polynesian Islands, Plate moved to Hawaii with
her family when she was five or six years old. While attending the University of
Hawaii, she met her future husband Raymond. She was 20 years old at that time,
and he was 43. Raymond worked for the District Courts of Hawaii and eventually
became a supervisor. He retired in 1989, after which the couple moved to Florida
where Plate was employed as a financial assistant or advisor for the next 25 years.
∗
Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
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During the time relevant to this case, Plate worked at Wells Fargo Advisors
Financial Network (“Wells Fargo”) at their branch office in Orlando, Florida. She
was the long time financial advisor for an elderly couple, Mr. and Mrs. D.M., and
she managed their securities and bonds portfolio. Over the course of her 20-year
relationship with the couple, they became close friends. As their mental capacities
diminished with age---and after they moved into an assisted living facility---Plate
began to perform duties for the couple outside and beyond the traditional financial
advisor role, including driving Mr. D.M. to his bank, helping Mrs. D.M. obtain her
medical prescriptions, and performing other care-giver activities.
In 2013, Plate told Mr. and Mrs. D.M. that her husband Raymond had been
suffering from a terminal illness to which he eventually succumbed in September
of that year. After his death, Plate asked the couple for money to help with funeral
expenses, and they gave her a personal check for $9,000.00. Shortly thereafter, on
or about October 22, 2013, Plate induced Mr. D.M to execute a Wells Fargo ACH
Authorization Agreement that allowed for the transfer of funds from the couple’s
Wells Fargo trust account into a separate account at SunTrust Bank. From October
2013 through May 2014, she manipulated Mr. D.M. into writing personal checks to
her (12 total) from the SunTrust account, and she liquidated securities in the trust
account by making a number of unauthorized sales (15 total). She used the funds
that she obtained from these transactions to, inter alia, pay her mortgage and make
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major upgrades to her home, including new fencing and air conditioning units. In
total, she defrauded the couple of $176,079.70, and she left little to nothing in their
account.
In July 2014, a Secret Service agent interviewed the couple at their assisted
living facility. Mr. D.M---who suffered from dementia---was incoherent during
the course of the interview, and the couple’s adult son confirmed that his parents
had diminished mental capacity. The next month, on August 26, 2014, the agent
contacted and interviewed Plate at a public coffee shop, during which she gave a
written confession, detailed the extent of her fraud, and expressed remorse for her
actions. By indictment dated April 15, 2015, she was charged with a single count
of embezzlement by a bank officer or employee in violation of 18 U.S.C. § 656.
She self-surrendered on April 20, 2015, and she was released with pretrial service
supervision that same day. She subsequently pled guilty to the offense as charged
in the indictment.
The presentence investigation report (“PSI”) calculated a base offense level
of 7 under U.S.S.G. § 2B1.1(a)(1). Plate received a 10-level enhancement under §
2B1.1(b)(1)(F) based on the amount of the loss, along with a 4-level enhancement
under § 2B1.1(b)(19)(A)(iii) because the crime involved a violation of securities
law and because she was a financial advisor. After receiving a 3-level reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1(a)-(b), her total offense
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level was 18. Plate had no prior convictions, which resulted in a criminal history
category of I. Based on an offense level of 18 and a criminal history category of I,
her guideline range was 27 to 33 months.
The PSI reported that Plate, who was 59 years old at the time of sentencing,
had a traumatic childhood during which she witnessed her mother being physically
abused by four or five different husbands. The PSI also reported that her husband
of more than 30 years (who was described as “her rock and best friend”) had died
in September 2013, and she had reportedly “not been able to overcome his death.”
In or about June 2015, after the events giving rise to this case, Plate was diagnosed
with depressive disorder, sold her house, and moved in with her brother. She was
unemployed at that time, with no significant assets or liabilities, and her net worth
was $47,500.00. The PSI did not identify any factors that would warrant departure
from the guideline range of 27 to 33 months, but it did identify several factors that
might warrant a sentence outside the advisory range, namely, her age, upbringing,
mental condition, and the fact that she had no prior criminal history. Neither party
objected to the PSI.
Prior to sentencing, Plate filed a memorandum with the district court, asking
for a sentence of probation (which she realized would be a “tremendous variance”).
She maintained that she was extremely remorseful, had sold her house to help pay
restitution, and was determined “to pay back ever [sic] penny that is owed.” She
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argued that probation was appropriate in her case---and that recidivism and safety
of the community were not a concern---because her crime was an anomaly brought
on by depression and reduced mental capacity following the death of her husband.
In support of her position and argument, Plate attached a forensic evaluation
by a licensed psychologist, Jacquelyn Olander, Ph.D. According to Dr. Olander’s
report, Raymond made most of couple’s “important life decisions” and “took care
of everything” during their marriage. After he died, Plate “experienced confusion
and significant uncertainty about herself.” Having to assume the responsibilities of
life without her husband, Dr. Olander opined, “created much fear and apprehension
such that she developed a maladaptive coping style of avoidance characterized by
apathy and indifference.” Because of this “maladaptive coping to stress” (coupled
with her “impaired emotional understanding” and “reduced mental capacity”), Dr.
Olander determined that Plate “may have engaged in illegal behaviors based upon
her attempt to replace or substitute the loss of her husband without any conscious
awareness of the occurring underlying psychological processes.” 1
1
According to the sentencing memorandum:
[Plate and Raymond] had no children and by all accounts were a
very united couple. Mr. [sic] Plate has stated that she has been
unable to overcome his death. The actions that constitute the
charges in this case occurred shortly after her husband’s death.
Ms. Plate has acknowledged that her husband’s death left her in
total and absolute despair.
***
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In addition to Dr. Olander’s report, the sentencing memorandum attached
numerous letters from Plate’s siblings, coworkers, her supervisor at Wells Fargo,
and former clients, all expressing their belief that her actions were completely out
of character and detailing the profound impact that her husband’s death had on her.
Perhaps most notably, the victims’ adult children also wrote on her behalf, saying
what a good and trusted friend she was and representing that their “whole family”
believed that sending her to jail would not be appropriate on the facts of the case. 2
At the sentencing hearing on August 19, 2015, Plate told the district judge
that she was “truly sorry.” She also told the judge (through her attorney) that she
brought $45,000.00 in cashier’s checks from the proceeds of the sale of her house
to put toward restitution. Because the PSI calculated her net worth as $47,500.00,
that was “pretty much everything she ha[d].” Her attorney further argued that her
behavior was “aberrant” and that a non-incarceration (probationary) sentence was
sufficient punishment as she “will live with this the rest of her life and her remorse
and her shame.”
It is significant that Dr. Olander believes that Ms. Plate may have
engaged in illegal behaviors based upon her attempt to replace or
substitute the loss of her husband. While to the common observer
this may seem unusual, Ms. Plate’s life completely imploded upon
the loss of her husband and protector.
2
Mr. and Mrs. D.M. had both died by the time of sentencing.
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The government did not dispute or challenge anything that Plate said during
the sentencing hearing, except to say that a probationary sentence was not possible.
The government argued that because a violation of Section 656 is a Class B felony,
the district judge was required to impose a term of prison (although it did request a
low-end guideline sentence). Plate pointed out in response, however, that because
she self-surrendered on April 20, 2015, the district judge could sentence her to
“time-served” (for that one day) followed by supervised release, which “would be
a legal sentence if the Court decided that, balancing out all the factors under [Title
18, United States Code, Section 3553(a)(1)-(7)], a sentence of non-imprisonment
was appropriate.”
After noting that Plate had used her position of trust to take advantage of
“demented” and “helpless” victims, the district judge stated (emphasis added):
Now, the Court takes into account that you have paid
back $40,000 toward restitution; but that’s just a drop in
the bucket when you’re talking about $142,000 that is
what you stole.
The Court would be glad under this case to give you
probation if you had paid back the restitution; but with
all this restitution still outstanding, the Court just can’t
do it.
I’ll tell you what I will do, though. You have a total
offense level of 18, criminal history category I. The
Court sees no reason in the Presentence Report to depart
from the guidelines. I will sentence you to the low end of
the guidelines of 27 months in the Bureau of Prisons, a
two-year supervised release term, restitution of
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$142,768.28 payable at $200 a month or more, depending
on your ability to make restitution after you come out of
prison, plus a $100 special assessment.
What the Court will do is if you, your friends and
supporters step up and pay your restitution, I will
immediately convert your prison term to probation.
You have two weeks in which to appeal this sentence if
you think it is illegal. . . . Also, I’ll give you voluntary
surrender on or before October 19th.
Neither side objected at the time---even though the district judge gave them
an opportunity to do so---but the parties now agree on appeal that the court erred in
promising to “immediately convert” Plate’s prison sentence to probation if she paid
restitution. Indeed, the law clearly provides that a district court may not modify a
prison sentence after it has been imposed unless permitted by statute or by Rule 35
of the Federal Rules of Criminal Procedure. Freeman v. United States, 564 U.S.
522, 526, 131 S. Ct. 2685, 2690 (2011) (“Federal courts are forbidden, as a general
matter, to ‘modify a term of imprisonment once it has been imposed[.]’”) (quoting
18 U.S.C. § 3582(c)).
Plate filed an appeal. She also filed a motion in the district court to remain
on bond pending the resolution of her appeal, which the court denied by endorsed
order without explanation. Thereafter, Plate moved this Court for release pending
her appeal, and she argued that the district court’s denial of her motion was legally
insufficient under Rule 9(a) of the Federal Rules of Appellate Procedure. A prior
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panel of this Court agreed, stayed her surrender date, and sent the case back to the
district court for the limited purpose of entering an order stating the reasons for its
earlier ruling. On remand, the district court explained that it denied Plate’s motion
to remain on bond (i) because she pled guilty, (ii) because she received a guideline
sentence, and (iii) because of the substantial amount of money that she embezzled,
“combined with the substantial outstanding restitution Plate had yet to repay.” The
district court further stated that her appeal was “frivolous” and that it did not raise
any substantial questions of law or fact. This Court then denied Plate’s motion for
release pending appeal, lifted the stay of her surrender date, and the appeal went to
oral argument, where Plate argued that her sentence violated the constitution and
that it was both procedurally and substantively unreasonable. Two days after oral
argument, we sua sponte ordered Plate released on bond pending this decision.
II.
Plate first argues that the district court violated her constitutional rights by
conditioning her liberty on her ability to pay restitution in full.3
3
In her brief, Plate argued that what the district judge did violated equal protection. At
oral argument, she said that it violated both equal protection and due process, which has support
in the law. For example, as the Supreme Court stated in Griffin v. Illinois, 351 U.S. 12, 76 S. Ct.
585 (1956), although “[p]roviding equal justice for poor and rich, weak and powerful alike is an
age-old problem,” our constitutional guaranties of due process and equal protection “both call for
procedures in criminal [cases] which allow no invidious discriminations between persons and
different groups of persons. Both equal protection and due process emphasize the central aim of
our entire judicial system—all people charged with crime must, so far as the law is concerned,
‘stand on an equality before the bar of justice in every American court.’” Id. at 16–17, 76 S. Ct.
at 589–90 (emphasis added). Ultimately, whether Plate’s claim in this case should be analyzed
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Supreme Court precedent supports her claim. In Williams v. Illinois, 399
U.S. 235, 90 S. Ct. 2018 (1970), Tate v. Short, 401 U.S. 395, 91 S. Ct. 668 (1971),
and Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064 (1983), the Supreme Court
held that it violates equal protection principles to incarcerate a person “solely
because he lacked the resources to pay” a fine or restitution. Bearden, 461 U.S. at
668, 103 S. Ct. at 2070. It is apparent that Plate was treated more harshly in her
sentence than she would have been if she (or her family and friends) had access to
more money, and that is unconstitutional, as multiple courts have held.4 See, e.g.,
United States v. Burgum, 633 F.3d 810 (9th Cir. 2011) (citing Williams, Tate, and
Bearden for the “well established” principle that “the Constitution forbids
imposing a longer term of imprisonment based on a defendant’s inability to pay
restitution”); Noel v. State, 191 So. 3d 370 (Fla. 2016) (relying on the same federal
cases and reaching the same conclusion).
as a question of due process, equal protection, or a combination of the two has no bearing on the
outcome of this appeal.
4
The facts of this case fully support the application of this constitutional principle here.
As previously noted, the district judge told Plate that he “would be glad under this case to give
you probation if you had paid back the restitution; but with all this restitution still outstanding,
the Court just can’t do it.” The judge then continued: “What the Court will do is if you, your
friends and supporters step up and pay your restitution, I will immediately convert your prison
term to probation.” Together, these statements unambiguously reflect that the district judge
would not have sentenced Plate to prison had she been able to pay the restitution in full.
Notably, the government conceded the point during oral argument as it agreed that, “based on the
court’s statements,” it was “very clear” that if Plate---or someone acting on her behalf---had paid
full restitution by the time of sentencing, “she would have walked out of that courtroom” without
a prison sentence at all.
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Nevertheless, despite the strength of her constitutional argument---indeed,
the government did not even oppose this argument in its brief---we do not base our
decision on that ground as we agree with Plate’s additional argument that the
sentence imposed was substantively unreasonable and an abuse of discretion. This
Court “need not reach the important constitutional questions raised” in cases that
can be decided on other grounds. See United States v. Madera, 528 F.3d 852, 859
(11th Cir. 2008) (per curiam); see also Slack v. McDaniel, 529 U.S. 473, 485, 120
S. Ct. 1595, 1604 (2000) (“Court[s] will not pass upon a constitutional question []
properly presented by the record, if there is also present some other ground upon
which the case may be disposed of[.]”) (quotation omitted).
We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010) (per
curiam). 5 In conducting this analysis, “[w]e acknowledge the institutional
superiority that district courts possess with regards to sentencing, and are mindful
that appellate review for reasonableness is not a license to substitute our views for
those of the district court.” United States v. Hayes, 762 F.3d 1300, 1307 (11th Cir.
2014). We also acknowledge that we can “ordinarily” expect a district court’s
5
We first considered Plate’s argument that the sentence was procedurally unreasonable,
as we are normally required to do. See, e.g., United States v. Hayes, 762 F.3d 1300, 1310 (11th
Cir. 2014). However, we review assertions of procedural error where there was no objection in
the district court only for plain error. United States v. Patterson, 595 F.3d 1324, 1326 (11th Cir.
2010). Under this standard of review, we found Plate’s argument to be lacking, and it is rejected
without discussion.
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sentence to be reasonable if, as here, it falls within the guideline range. United
States v. Joseph, 709 F.3d 1082, 1105 (11th Cir. 2013) (quotation omitted).
Nonetheless, our review is not toothless. See United States v. Pugh, 515 F.3d
1179, 1191 (11th Cir. 2008) (“[T]he district court’s choice of sentence is not
unfettered.”).
District courts are required to impose sentences sufficient, but not greater
than necessary, to comply with the factors and purposes set forth in § 3553(a)(2),
which include the need to reflect the seriousness of the offense, promote respect
for the law, provide just punishment for the offense, deter criminal conduct, and
protect the public. United States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016).
In addition, the district court must consider the nature and circumstances of the
offense, the history and characteristics of the defendant, the kinds of sentences
available, the applicable guidelines range, the pertinent policy statements of the
Sentencing Commission, the need to avoid unwarranted sentencing disparities, and
the need to provide restitution to the victim. Id. (citing 18 U.S.C. § 3553(a)(1),
(3)-(7)).
Notwithstanding the “considerable discretion” that district courts have in
applying these factors and imposing sentence, United States v. Shaw, 560 F.3d
1230, 1238 (11th Cir. 2009) (quotation omitted), “[a] district court abuses its
discretion when it (1) fails to afford consideration to the relevant factors that were
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due significant weight, (2) gives significant weight to an improper or irrelevant
factor, or (3) commits a clear error of judgment in considering the proper factors.”
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (emphasis
added) (quotation omitted). As this Court has said: “A sentence that is based
entirely upon an impermissible factor is unreasonable because such a sentence does
not achieve the purposes of § 3553(a).” United States v. Velasquez Velasquez, 524
F.3d 1248, 1252 (11th Cir. 2008) (per curiam) (quotation omitted).
Here, the district judge abused his discretion by giving significant (indeed,
dispositive) weight to Plate’s inability to pay restitution. In sentencing Plate to
prison, the district judge stated that he would be “glad under this case to give [her]
probation if [she] had paid back the restitution.” This statement was an obvious
indication of what the judge would have done if she had paid full restitution at (or
before) the sentencing hearing. Indeed, as earlier noted, the government conceded
during oral argument that the record is “very clear” that is exactly what the district
judge meant. See supra note 4. Moreover, the district judge offered to
“immediately convert” Plate’s prison term if she paid the restitution at a later date,
which further showed that the judge gave significant weight and consideration to
her inability to pay restitution at the time of sentencing. And further still, in his
response to this Court’s question on remand, the district judge stressed that the
“substantial outstanding restitution Plate had yet to repay” was a motivating factor
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in his original sentencing decision. Her inability to pay restitution in full was an
impermissible factor insofar as it is not among the factors listed in § 3553(a). 6
It is true that the district judge emphasized the seriousness of Plate’s offense
at sentencing (e.g., by noting that she took advantage of “demented” and “helpless”
victims); and it is also true that the judge said that he saw no reason to depart from
the guidelines. Nevertheless, the record unambiguously shows (and, once again,
the government has expressly admitted) that the district judge would have imposed
a sentence of no further incarceration if Plate had been able to pay the restitution at
or before the sentencing hearing. However this sentence is characterized---whether
it is viewed as a failure to “reward” for paying restitution (as the government says)
or as “punishment” for not paying (as Plate says)---is irrelevant because, in either
case, the district judge clearly gave significant weight to Plate’s inability to pay as
a factor in the sentence that he imposed, and he ended up imposing a prison term
6
That is not to say that restitution is irrelevant under Section 3553. To the contrary, as
previously noted, one of the factors the district court has to consider in fashioning a sentence is
“the need to provide restitution to any victims of the offense.” 18 U.S.C. § 3553(a)(7). To say
that the district court must consider the need to provide victims with restitution, however, is not
the same thing as saying the court may sentence the defendant to prison solely because she was
unable to pay the restitution in full. If anything, imposing such a sentence arguably cuts against
that factor. See Daniel Faichney, Comment, Autocorrect? A Proposal to Encourage Voluntary
Restitution Through the White-Collar Sentencing Calculus, 104 J. Crim. L. & Criminology 389,
405 n.76 (2014) (“Section 3553(a)(7) . . . has a utilitarian dimension in that a harsh sentence may
undercut the offender’s ability to work in order to repay her victims.”) (citing United States v.
Rangel, 697 F.3d 795, 803–04 (9th Cir. 2012) (“[T]he district court’s goal of obtaining
restitution for the victims of Defendant’s offense, 18 U.S.C. § 3553(a)(7), is better served by a
non-incarcerated and employed defendant.”) (quotation omitted)).
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based solely on that factor, which is not a permissible consideration under Section
3553(a).
III.
As indicated above, we must vacate Plate’s sentence and remand the case for
resentencing. Because the district judge confirmed and reiterated his consideration
of Plate’s inability to pay restitution as a factor in his order on remand---coupled
with his stated belief that Plate’s arguments on appeal were “frivolous,” even after
having the benefit of reviewing those arguments---it appears the district court may
be unable to disregard its improper consideration of that factor or, at least, that it
may appear so. See United States v. Torkington, 874 F.2d 1441, 1446–47 (11th
Cir. 1989) (per curiam). Thus, we will exercise our supervisory powers and
remand the case for resentencing before a different district court judge.
VACATED AND REMANDED FOR RESENTENCING.
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