United States v. Richard

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 17, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 04-30544
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICIA A. RICHARD,
a/k/a Patricia A. Chevis,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
6:03-CR-60036
Before REAVLEY, JONES, and GARZA, Circuit Judges.
PER CURIAM:*
Appellant Patricia A. Richard, a/k/a Patricia Chevis,
received Social Security benefits covering a period from 1992
through 2001, despite the fact she was receiving income from her
own business, the St. Landry Public Assistance Corporation,
throughout most of that period. The Social Security Administration
(SSA) paid Richard benefits based on her misrepresentations
regarding the nature and extent of her alleged disability and her
inability to maintain employment. Had Richard candidly informed
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
SSA employees and judges of her income, she would not have received
benefits. Richard received approximately $83,278 in disability
payments for herself and her minor children. After her ruse was
detected, Richard pled guilty to one count of making a false
statement to the SSA. She was sentenced to five months of
imprisonment, three years of supervised release (with five months
to be served in home confinement), and was ordered to pay
restitution to the SSA in the amount of $76,870. She now appeals
her sentence.
Richard raises three claims of error: (1) The district
court erred in calculating the amount of loss attributable to her
misrepresentation, leading to an increased sentence; (2) The
sentence violated United States v. Booker, 125 S. Ct. 738 (2005);
and (3) The restitution award is improper.
The district court loss calculation of $76,870 increased
Richard’s base offense level by eight points, pursuant to U.S.S.G.
§ 2B1.1(b)(1). The district court’s calculation of loss under
§ 2B1.1 is a finding of fact, reviewable only for clear error.
United States v. Randall, 157 F.3d 328, 330 (5th Cir.
1998)(construing former U.S.S.G. § 2F1.1).1 Even after Booker, we
review the district court’s interpretation of the guidelines de
novo. United States v. Villegas, __ F.3d __, 2005 WL 627963, *4
1
Section 2F1.1 was deleted by Guideline Amendment 617 and was
consolidated with § 2B1.1, effective November 1, 2001. Richard’s offense of
conviction was committed on December 4, 2001.
2
(5th Cir. Mar. 17, 2005). When calculating the loss under § 2B1.1,
the district court need only make a reasonable estimate of the
loss, given the available information. § 2B1.1, comment. (n.3(C));
Randall, 157 F.3d at 330. The method of calculating the loss must
bear a reasonable relationship to the actual or intended harm
caused by the offense. Randall, 157 F.3d at 331. In order to
attribute losses to a defendant’s fraudulent conduct, the Govern-
ment must establish a factual basis to conclude that the losses
resulted from the fraud. Id. The calculation of the loss amount
for sentencing purposes may include all relevant conduct undertaken
by the defendant, including acts that occurred “in the course of
attempting to avoid detection or responsibility for that offense.”
§ 1B1.3(a)(1); see also United States v. Somsamouth, 352 F.3d 1271,
1278 (9th Cir. 2003), cert. denied, 124 S. Ct. 2049 (2004) (affirm-
ing loss calculation based on proof of the earliest time the
defendants engaged in substantial gainful activity, not the date of
their false statements made for the purpose of retaining their
benefits). The facts Richard admitted at sentencing fully support
the district court’s loss finding, which we will not disturb.
For the first time on appeal, Richard challenges her
sentence under the United States Sentencing Guidelines on the basis
of United States v. Booker, 125 S. Ct. 738 (2005). Thus, we review
her sentence for plain error as held in United States v. Mares, 402
F.3d 511 (5th Cir. 2005). Under plain error review, the defendant
must demonstrate that (1) there was error, (2) which was clear or
3
obvious, (3) that affects substantial rights, and (4) the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings. United States v. Olano, 507 U.S. 725, 732,
113 S. Ct. 1770, 1776-77 (1993).
Richard meets the first two prongs of this test: In light
of Booker, the district court erred in sentencing Richard under the
now unconstitutional mandatory sentencing guidelines scheme based
on judicial fact finding; this error is now plain from the record.
The key issue is the third prong of plain error review under Mares,
“whether [Richard] demonstrated that the sentencing judge —
sentencing under an advisory scheme rather than a mandatory one —
would have reached a significantly different result.” Mares, 2005
WL 503715 at *9. Richard quotes the following passage from the
district court judge at sentencing in support of her claim:
I got to be a Judge in 1994. These Sentencing Commission
Guidelines come [sic] in 1986. The judges that were on
the bench before I’m there and some that come after me,
frankly — and I just kind of got with the crowd when I
got there — were complaining that it was taking away the
authority of the district court, which the Supreme Court
said, no it’s not. Congress can set these guidelines
through the Sentencing Commission. It gave a lot of
older judges heartburn. Well, one of the things it took
off the district judge’s plate, which philosophically, I
suppose, while it may be legal for Congress to do that,
it may not be a good idea for them to do it, but they’ve
done it. It takes this kind of case off the district
judge’s plate because here I am. If I want to cheat
intellectually right now and give a different result, I
can make a factual finding and go with you on the amount
of the loss, and I don’t think anybody could touch it.
Then I can do a lesser degree than called for by the
current guidelines. But I can’t be intellectually
dishonest.
4
R. Vol. 3 at 156-57 (quoting and citing the record) (emphasis
added). Throughout the sentencing proceeding, the district judge
indicated both sympathy for Richard as well as his resolved feeling
that she had committed the crime and the punishment was warranted.
Compare United States v. Shelton, __ F.3d __, 2005 WL 435120, at *6
(11th Cir. Feb. 25, 2005) (reversing sentence on plain error where
the district court made numerous, clear statements characterizing
guidelines-mandated sentence as “too severe” and “unfortunate[],”
and then imposed lowest possible sentence under the guidelines)
with R. at 157 (acknowledging that the SSA should have detected
Richard’s conduct earlier, but noting that the “complicity of the
bureaucracy . . . doesn’t relieve her culpability for what she
did”), 162 (denying Richard’s motion for downward departure).
Richard cannot meet her burden of proof under Mares.
Finally, Richard claims the restitution award requires
her to pay restitution for acts she never admitted or pled guilty
to, in violation of United States v. Hughey, 495 U.S. 411, 110 S.
Ct. 1979 (1990). This court reviews a district court’s order of
restitution de novo. United States v. Adams, 363 F.3d 363, 365
(5th Cir. 2004). Once the court determines that an award of
restitution is permitted by the appropriate law, the court reviews
the propriety of a particular award for an abuse of discretion.
Id.A district court may order restitution stemming from a
fraudulent scheme even when the defendant pleads guilty only to
5
some counts in the indictment so long as the defendant’s plea
agreement contemplates a broader scheme to defraud. United States
v. Cothran, 302 F.3d 279, 289-90 (5th Cir. 2002). In United States
v. Arnold, 947 F.2d 1236 (5th Cir. 1991), for example, the
defendant pled guilty only to some of the counts for which he was
indicted, but also explicitly admitted to causing the loss on which
the district court based its restitution award and failed to object
to the restitution order at trial. Id. at 1238. Richard pled
guilty to Count 2 of the indictment, and in exchange the Government
dismissed Count 1. However, Richard also admitted facts sufficient
to support the district court’s restitution award. See R. 50-51
(admitting that Richard knew the statement to be false “because on
November 3, 1994, she along with others, formed the St. Landry
Public Assistance Corporation,” and also admitting to hiring
several employees, serving 2,205 clients, and executing a contract
through this company). Richard’s admissions placed her guilty plea
to Count 2 in the framework of a course of conduct and thus
provided the district court sufficient basis for its restitution
award.2
AFFIRMED.
2
Richard further objects, for the first time on appeal, to the
restitution award because the award includes activity outside the statute of
limitations period of Count 2. However, Richard’s failure to raise this claim
in the district court, dovetailed with her admissions through the plea agreement,
preclude reduction of the restitution award in this court on that basis.
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EMILIO M. GARZA, Circuit Judge, specially concurring:
I concur with the majority’s opinion, except for the de novo
standard of review. For the reasons stated in my concurrence in
United States v. Creech, No. 04-40354, 2005 WL 1022435, at *9 (5th
Cir. May 3, 2005), I do not agree that we review a district court’s
interpretation of the Sentencing Guidelines de novo. While
endorsed in dicta in Villegas, this standard is inconsistent with
the Supreme Court’s decision in Booker, requiring appellate court’s
to review sentencing decisions for unreasonableness. Booker, 125
S. Ct. at 767. Because I agree that the district court in this
case correctly interpreted the Sentencing Guidelines, I conclude
that the sentence was not unreasonable. See Mares, 402 F.3d at 519(“Given the deference due the sentencing judge’s discretion under
the Booker/Fanfan regime, it will be rare for a reviewing court to
say [a sentence in which the district court properly applied the
Guidelines] is ‘unreasonable.’”).
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