United States v. Gallop

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5054
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TERESA R. GALLOP, a/k/a Teresa R. Vick,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr.,
Senior District Judge. (2:08-cr-00217-HCM-TEM-1)
Submitted: August 19, 2010 Decided: August 26, 2010
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory B. English, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Alan M.
Salsbury, Katherine Lee Martin, Assistant United States
Attorneys, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Teresa R. Gallop on one count of
health care fraud, 18 U.S.C. § 1347 (2006), and six counts of
making a false statement relating to health care matters, 18
U.S.C. § 1035 (2006). She was sentenced to eighty-four months’
imprisonment. Gallop’s sole claim on appeal is that the
district court failed to properly apply the 18 U.S.C. § 3553(a)
(2006) factors in fashioning her sentence. We affirm.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court properly calculated
the defendant’s advisory Guidelines range, this court must
decide whether the district court considered the § 3553(a)
factors, analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S.
at 51. Although the district court is not required to
“robotically tick through § 3553(a)’s every subsection,” United
States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006), it “must
place on the record an individualized assessment based on the
particular facts of the case before it. This individualized
assessment need not be elaborate or lengthy, but it must provide
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a rationale tailored to the particular case at hand and adequate
to permit meaningful appellate review.” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation
marks, footnote, and citation omitted). Properly preserved
claims of procedural error are subject to harmless error review.
Lynn, 592 F.3d at 576. If the sentence is free of significant
procedural error, the appellate court reviews the substantive
reasonableness of the sentence. Id. at 575; United States v.
Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
Gallop contends that her sentence is unreasonable
because the district court failed to adequately consider the
§ 3553(a) factors. Gallop preserved the issue by arguing in the
district court for a sentence below the advisory Guidelines
range. See Lynn, 592 F.3d at 577-78.
Based on an adjusted offense level of twenty and a
criminal history category of V, the probation officer calculated
an advisory Guidelines range of sixty-three to seventy-eight
months’ imprisonment. Prior to sentencing, the Government filed
a motion for an upward departure based on the inadequacy of
Gallop’s criminal history category, U.S. Sentencing Guidelines
Manual (“USSG”) § 4A1.3(a) (2008), and Gallop’s use of more than
one minor child to commit the offenses, USSG § 3B1.4, comt.
(n.3). The Government also moved for imposition of a variance
sentence based on the 18 U.S.C. § 3553(a) factors. Gallop, in
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turn, moved for a downward departure based on her family
responsibilities and on the ground that her offense level
overstated the seriousness of her offense.
At sentencing, the district court granted the
Government’s motion for an upward departure, calculated a new
advisory Guidelines range of seventy to eighty-seven months’
imprisonment, and sentenced Gallop to eight-four months’
imprisonment. In granting the Government’s motion, the district
court noted that Gallop used minors for her own profit and her
criminal history category understated her actual criminal
history. With respect to the § 3553(a) factors, the district
court noted its consideration of the nature and circumstances of
the offense, the history and characteristics of this defendant,
and the need to protect the public from further crimes by the
defendant. Specifically, the district court emphasized that
Gallop had shown disrespect for the law by engaging recently in
fraudulent conduct; her conduct endangered others; and her
multiple convictions have failed to deter her fraudulent
conduct. Based on these considerations, the district court
explained that, even in the absence of an upward departure, a
variance in excess of the Guidelines would be appropriate in
this case.
We conclude that the district court committed no error
in its consideration, and articulation of, the § 3553(a) factors
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as applied to Gallop’s case. We further find no abuse of
discretion in the chosen sentence. Accordingly, we affirm
Gallop’s sentence. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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