United States v. Denise Southerland

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4663
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DENISE ANN SOUTHERLAND,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:10-cr-00292-GBL-1)
Submitted: February 14, 2012 Decided: March 9, 2012
Before NIEMEYER, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rebecca S. Colaw, REBECCA S. COLAW, PC, Suffolk, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Timothy D.
Belevetz, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Denise Ann Southerland appeals her fifty-seven-month
sentence following her guilty plea to one count of bank fraud,
in violation of 18 U.S.C. § 1344 (2006). On appeal, Southerland
claims that the district court erred in applying a
fourteen-level loss enhancement; ordering allegedly excessive
restitution unsupported by specific factual findings regarding
her ability to pay; declining to depart downward for her medical
conditions; and failing to properly apply 18 U.S.C. § 3553(a)
(2006). We affirm.
We review a sentence imposed by a district court under
a deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 46 (2007); United States v. Lynn, 592 F.3d
572, 578-79 (4th Cir. 2010) (abuse of discretion standard of
review applicable when defendant properly preserves a claim of
sentencing error in the district court “[b]y drawing arguments
from § 3553 for a sentence different than the one ultimately
imposed”). We begin by reviewing the sentence for significant
procedural error, including improperly calculating the
Guidelines range, failing to consider the § 3553(a) factors,
choosing a sentence based on clearly erroneous facts, or failing
to adequately explain the sentence. Gall, 552 U.S. at 51.
Southerland first argues that the fourteen-level
enhancement authorized by U.S. Sentencing Guidelines Manual
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(“USSG”) § 2B1.1(b)(1)(H) (2010) is not empirically based and
should not be afforded deference. Contrary to her argument,
Southerland’s sentence is not subject to decreased deference,
nor was the district court required to disregard the Guideline
on the ground that it is not empirically based. United
States v. Rivera-Santana, ___F.3d___, 2012 WL 310871, at *4 (4th
Cir. Feb. 2, 2012).
Next, Southerland argues that the $572,811.43
restitution award was not properly calculated because 1) it
included a $220,000 loan payment that, Southerland argues, was
not related to the bank fraud conviction and was made by people
that were not victims of that offense; and 2) the district court
did not make specific factual findings regarding Southerland’s
ability to pay. Because Southerland failed to challenge the
restitution order in the district court, the calculation is
reviewed for plain error. See United States v. White, 405 F.3d
208, 215 (4th Cir. 2005).
First, we conclude that the district court did not
plainly err in including the $220,000 loan payment in the
restitution amount. The couple who made the payment were
clearly victims directly and proximately harmed by Southerland’s
criminal conduct in the course of her bank fraud scheme. See 18
U.S.C. § 3663A(a)(2) (2006). Further, there is no controlling
precedent on the issue of whether, under the Mandatory Victim
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Restitution Act of 1996, 18 U.S.C. § 3663A(a)(1) (2006), a
district court may include in its restitution calculation a loss
caused by the defendant that does not fall under the offense of
bank fraud but that is part of the common scheme to defraud.
Therefore, it cannot be said that the district court committed
plain error when it included the loan payment in the restitution
amount. See United States v. Beasley, 495 F.3d 142, 149 (4th
Cir. 2007).
We also hold that the district court committed no
error, plain or otherwise, with respect to its factual findings
regarding Southerland’s ability to pay. In making a restitution
award, a district court must determine the amount of restitution
that the defendant owes, and “the manner in which, and the
schedule according to which, the restitution is to be paid.” 18
U.S.C. § 3664(f)(2) (2006). In this inquiry the court must make
specific findings of fact with respect to “the financial
resources and other assets of the defendant,” her projected
earnings and other income, and her financial obligations,
including obligations to dependents. 18 U.S.C.
§ 3664(f)(2)(A)-(C). The court need not make separate findings
of fact, but may adopt the findings set forth in the presentence
investigation report (“PSR”), if the facts contained therein are
themselves adequate. United States v. Castner, 50 F.3d 1267,
1277 (4th Cir. 1995). Because we hold that the district court’s
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adoption of the PSR’s factual findings and its order of periodic
payments was adequate, we conclude that the district court did
not plainly err in ordering restitution.
Southerland also claims that the district court erred
in declining to depart downward for her physical impairment
pursuant to USSG § 5H1.4. Because the district court clearly
understood its authority to depart downward, we may not consider
this claim on appeal. See United States v. Brewer, 520 F.3d
367, 371 (4th Cir. 2008).
Finally, Southerland argues that her sentence was
unreasonable because the district court failed to properly apply
the § 3553(a) factors. To the contrary, the district court
thoroughly explained its chosen sentence, explicitly considering
the severity of the offense, Southerland’s criminal history and
characteristics, the victim impact, and Southerland’s medical
conditions. Accordingly, we conclude that the district court
did not abuse its discretion in sentencing Southerland to
fifty-seven months’ imprisonment.
For the foregoing reasons, we affirm the district
court’s judgment. We deny Southerland’s motion to file a pro se
supplemental brief and deny as moot her pro se motions for
release pending appeal and for expedited review. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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