United States v. Shull

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4980
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONNA SHULL, a/k/a Donna Chapman,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-05-110)
Argued: May 26, 2006 Decided: July 7, 2006
Before MICHAEL and KING, Circuit Judges, and Joseph F. ANDERSON,
Jr., Chief United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Edward Henry Weis, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia,
for Appellant. Karen B. George, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public
Defender, Jonathan D. Byrne, Appellate Counsel, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant.
Charles T. Miller, Acting United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Donna Shull appeals from the twenty-one-month sentence imposed
on her in 2005 in the Southern District of West Virginia, after she
had entered pleas of guilty to a two-count criminal information,
charging her with fraud offenses. She does not challenge her
convictions on appeal, but contends only that (1) the sentencing
court erred in finding the amount of loss caused by her offenses,
thereby miscalculating her Guidelines sentencing range; and (2) her
sentence is otherwise unreasonable. As explained below, we affirm
her sentence.
I.
On May 26, 2005, Shull and the Government entered into a
written plea agreement, whereby she agreed to waive her right to
indictment and plead guilty to a two-count information. The
information was filed against her in the district court on May 31,
2005. Count One charged the knowing concealment of an event that
would have affected Shull’s ability to obtain Supplemental Security
Income (“SSI”), in contravention of 42 U.S.C. § 1383a(a)(3) (the
“SSI offense”). In Count Two, Shull was charged with having used,
with the intent to defraud, “one or more unauthorized access
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devices,” in violation of 18 U.S.C. § 1029(a)(2) (the “access
device offense”).1
On June 30, 2005, the district court conducted Shull’s Rule 11
plea hearing in Huntington, West Virginia. At that hearing, Tim
Morton, a Special Agent with the Social Security Administration’s
Inspector General’s Office, testified that Shull had accepted SSI
benefits while concealing the fact that she worked as a personal
care assistant for two elderly women, Ms. Gray and Ms. Stanley.
According to Morton, Shull worked as a caretaker for Ms. Gray from
July 2004 until her death in September 2004, and thereafter worked
as Ms. Stanley’s caretaker until she passed away on December 21,
2004. Morton further testified that, as a result of concealing her
caretaking activities, Shull had received $6,598.44 in SSI benefits
from the Social Security Administration (the “SSA”) to which she
was not entitled. In responding to this testimony at the plea
hearing, Shull acknowledged that it was “substantially correct.”
1
Pursuant to § 1029(e)(1), an “access device” is defined as
any card, plate, code, account number, electronic serial
number, mobile identification number, personal
identification number, or other telecommunications
service, equipment, or instrument identifier, or other
means of account access that can be used, alone or in
conjunction with another access device, to obtain money,
goods, services, or any other thing of value, or that can
be used to initiate a transfer of funds (other than a
transfer originated solely by paper instrument).
In the access device offense, Shull used credit cards which she had
fraudulently registered in another person’s name, and also forged
checks drawn on that person’s account.
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J.A. 37.2 Shull also admitted that, without authorization, she had
registered credit cards in Gray’s name, she had used those credit
cards to make purchases, and that she had forged checks drawn on
Gray’s account. After finding a sufficient factual basis for
Shull’s guilty pleas and satisfying itself that Shull fully
understood her rights and what she was doing, the district court
accepted Shull’s guilty pleas.
Shull’s presentence report (the “PSR”) was submitted to the
district court on August 8, 2005. It recommended assigning Shull
a base offense level of 6 for each of her offenses, see USSG
§ 2B1.1 (2004), and grouping the offenses under the Guidelines, see
id. § 3D1.2(d). The PSR further recommended applying (1) a
four-level enhancement because the amount of loss resulting from
Shull’s offenses, when combined, totaled more than $10,000
($6,598.44 on the SSI offense and $6,966.44 on the access device
offense), see id. § 2B1.1(b)(1)(C); (2) a two-level enhancement
because the offense charged in Count Two involved the unlawful use
of a means of identification, see id. § 2B1.1(b)(10); (3) a four-
level enhancement because Shull “knew or should have known” that
the victim of her access device offense (Ms. Gray) was vulnerable,
see id. § 3A1.1(b)(1); and (4) a two-level reduction for acceptance
of responsibility, see id. § 3E1.1(a). The PSR therefore
2
Our citations to “J.A. __” refer to the contents of the Joint
Appendix filed by the parties in this appeal.
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calculated Shull’s total offense level at 12, which, when combined
with a criminal history category of III, yielded an advisory
Guidelines sentencing range of fifteen to twenty-one months
imprisonment.
Shull thereafter filed objections to the PSR, contending that
it overestimated the losses caused by each of her offenses. In
Shull’s view the loss caused by her SSI offense was $3,474 — not
the $6,598.44 indicated by the PSR. Shull’s objection centered on
her assertion that, when she worked as a caretaker for Ms. Gray and
Ms. Stanley, she was their employee and was not self-employed.
Pursuant to its regulations, the SSA’s calculation of income for
SSI eligibility purposes depends, in part, upon whether the income
is received in the form of employee “wages” or “[n]et earnings from
self-employment.” See 20 C.F.R. § 416.1111(a) & (b). Importantly,
employee wages count as income for the month in which the wages are
actually received, while income earned through self-employment is
divided “equally among the months in the taxable year.” Id.3 In
Shull’s view, she was a wage-earning employee when she worked as a
caretaker from July though December 2004, and her resulting income
therefore only affected her SSI eligibility for those specific
3
Pursuant to these SSA regulations, if an employee earns
$1,200 in wages in a given year, all in January, the SSA will
consider her to have earned $1,200 for January and nothing for the
year’s remaining eleven months. On the other hand, if a self-
employed SSI claimant similarly makes $1,200 in January and nothing
for the balance of the year, the SSA will calculate her income as
$100 for each month of the year.
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months. She thus contended that she was entitled to all of the SSI
benefits she had received for the six months from January through
June of 2004.
Shull further contended, in objecting to the PSR, that the
loss caused by her access device offense should be reduced by
approximately $500, from the PSR’s recommendation of $6,966.44 to
the sum of $6,439.98. In so contending, Shull asserted that some
of the access device activity cited in the PSR had been approved by
Ms. Gray. Shull therefore maintained that the total loss caused by
her offenses was $9,913.98, and that application of a two-level
enhancement for amount of loss — in lieu of the four-level
enhancement recommended by the PSR — was appropriate. See USSG
§ 2B1.1(b)(1)(B) & (C).
Shull renewed her objections to the PSR at her September 12,
2005 sentencing hearing. In responding to Shull’s contention
concerning the SSI offense, the Assistant United States Attorney
asserted that “when the Social Security Administration was
presented with the facts of this case and they went through and
made the calculation for overpayment, they considered [Shull] . .
. as self-employed.” J.A. 71. According to the prosecutor, the
SSA therefore concluded that, because she had concealed her
caretaking activities, Shull received $6,598.44 in SSI benefits to
which she was not entitled. When questioned by the sentencing
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court, Shull’s lawyer acknowledged the SSA ruling, but maintained
that it should not be accorded any weight by the sentencing court.
The court overruled Shull’s objection to the PSR on the amount
of loss caused by her SSI offense. In so doing, the court appears
to have relied exclusively on the SSA’s ruling, concluding that
“some deference is fairly afforded to the Social Security
Administration.” Accordingly, the court found the loss caused by
Shull’s SSI offense to be the amount specified by the SSA in its
ruling, that is, $6,598.44. After finding that a loss of $6,268.21
was attributable to her access device offense, the court concluded
that the total loss resulting from Shull’s offenses was the sum of
$12,866.65, which sufficiently supported the four-level, amount-of-
loss enhancement recommended by the PSR. The court thus concluded
that the PSR had correctly calculated Shull’s Guidelines sentencing
range as fifteen to twenty-one months imprisonment.
In deciding upon an appropriate sentence, the court stated
that it was “baffled at why” Shull had committed the SSI offense,
in that the court had given her a “break” on a similar conviction
two years before. J.A. 82-83. The court then sentenced Shull to
twenty-one months in custody, the top of the Guidelines range. The
court further ordered Shull’s sentence to run consecutive to the
twelve-month sentence she had previously received for violating the
conditions of her supervised release, yielding a total of thirty-
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three months. Shull appeals from her sentence, and we possess
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
II.
On appeal, we review a sentence imposed under the advisory
Guidelines regime established by United States v. Booker, 543 U.S.
220(2005), to determine whether it “is within the statutorily
prescribed range and is reasonable.” United States v. Moreland,
437 F.3d 424, 433 (4th Cir. 2006) (internal quotation marks
omitted). “Reasonableness review involves both procedural and
substantive components.” Id. at 434. A post-Booker sentence is
procedurally reasonable if the sentencing court has properly
calculated a defendant’s Guidelines range, determined whether a
sentence within that range serves the other factors enumerated in
18 U.S.C. § 3553(a), and then imposed an appropriate sentence. Id.
at 432. Because a sentencing court is obliged to consult the
Guidelines, an error in the Guidelines calculation renders a
resulting sentence unreasonable per se. See id. And a sentence
that is procedurally reasonable is entitled to a presumption of
substantive reasonableness if it falls within the properly
calculated Guidelines range. Id. at 433. In conducting our
review, “we review legal questions, including the interpretation of
the guidelines, de novo, while factual findings are reviewed for
clear error.” Id.9
III.
A.
Shull’s primary appellate contention is that her sentence was
procedurally unreasonable because the sentencing court erred in
calculating the loss caused by her offenses as more than $10,000
and, consequently, in applying a four-level amount-of-loss
enhancement in its determination of her Guidelines range.
Specifically, she maintains that the court clearly erred in finding
that her SSI offense caused a loss of $6,598.44. According to
Shull, the court should have determined that she was a wage-earning
employee when she worked as a caretaker, and that she was therefore
entitled to the SSI benefits she received for the six-month period
from January through June of 2004. Under Shull’s view, the loss
caused by her SSI offense was $3,474, which, combined with the loss
of $6,268.21 attributed to her access device offense by the
sentencing court, would yield a total loss of $9,742.21, resulting
in an enhancement of two levels only. See USSG § 2B1.1(b)(1)(C).
Shull’s SSI offense consisted of accepting SSI benefits while
concealing her caretaking activities, and the loss caused by that
offense was the value of the SSI benefits she improperly received
because of her concealment. See USSG § 2B1.1, comment. (n.3(f)(ii)
(2004) (“In a case involving government benefits . . . , loss shall
be considered to be not less than the value of the benefits
obtained by unintended recipients . . . .”). In its administrative
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ruling on the matter, the SSA concluded that it would have awarded
Shull $6,598.44 less in SSI benefits if she had disclosed her
caretaking activities. And, in seeking to ascertain the amount of
loss caused by Shull’s SSI offense, the sentencing court relied on
the SSA’s ruling.
On appeal, Shull does not challenge the validity of the SSA’s
ruling. Rather, she contends that the sentencing court was not
entitled to rely on the ruling for two reasons: (1) the burden of
proof is allocated differently in SSA proceedings than it is in
federal sentencing proceedings; and (2) as no record of the SSA
proceeding was introduced at Shull’s sentencing hearing, the SSA’s
ruling could not be “meaningful[ly] review[ed]” by the sentencing
court. Appellant’s Br. at 10. In so contending, Shull has
misconstrued the amount of loss inquiry. The court was not obliged
to determine whether Shull was an employee, on the one hand, or
self-employed, on the other; its task was to determine the
difference between the value of the SSI benefits Shull actually
received, and the value of those she would have been awarded if she
had disclosed her caretaking activities. And the agency that
administers a benefit program is in a decidedly better position
than a federal sentencing court to determine the amount of benefits
a claimant would have received if she had been honest. The SSA’s
ruling was therefore strong evidence that it had overpaid Shull by
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$6,598.44, and the sentencing court was thus entitled to rely upon
it.
In these circumstances, the sentencing court did not err in
finding that the loss caused by Shull’s SSI offense was $6,598.44.
As Shull has not challenged the court’s finding that a loss of
$6,268.21 was caused by her access device offense, the court thus
did not err in concluding that her offenses caused a loss of more
than $10,000. And the court was therefore obliged to apply a four-
level amount-of-loss enhancement in its calculation of the
Guidelines range. Accordingly, we reject Shull’s contention that
her sentence is procedurally unreasonable.
B.
Shull further contends that, even if procedurally reasonable,
her twenty-one-month sentence is substantively unreasonable. In
that regard, Shull’s sentence fell within her properly calculated
Guidelines range of fifteen to twenty-one months, and is therefore
presumptively reasonable. See United States v. Moreland, 437 F.3d
424, 433 (4th Cir. 2006). Shull attempts to rebut this presumption
by maintaining that her sentence was greater than that necessary to
“reflect the seriousness” of her offenses and to “afford adequate
deterrence to criminal conduct,” see 18 U.S.C. § 3553(a)(2)(A) &
(C), and also that a lesser sentence would afford her a greater
opportunity to make restitution, see id. § 3553(a)(7). Although
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Shull’s contentions might have properly aided the sentencing court
in selecting an appropriate sentence, they are insufficient to
overcome the presumption that her Guidelines sentence is
substantively reasonable. In these circumstances, this contention
must also be rejected.
IV.
Pursuant to the foregoing, we reject Shull’s assignments of
error and affirm her sentence.
AFFIRMED
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