United States v. Nicole Wagy

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1297
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Nicole Wagy, *
* [UNPUBLISHED]
Defendant - Appellant. *
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Submitted: October 17, 2011
Filed: December 15, 2011
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Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
After being found guilty in 2009 of harboring a fugitive, Nicole Wagy received
a sentence of sixty-two days' custody (time served) and three years' supervised
release. Her terms of supervised release included a prohibition on using alcohol and
a requirement that she attend and successfully complete mental health counseling and
treatment.
A supervised release revocation petition was subsequently filed alleging Wagy
had violated the terms of her supervised release by driving under the influence of
alcohol, engaging in prostitution, using alcohol, and failing to attend mental health
and substance counseling. A warrant was issued for her arrest. When officers
attempted to execute the arrest warrant on Wagy, she led officers on a high-speed
chase. This conduct led to the filing of an amended petition adding the allegation that
she fled to avoid arrest.
At a supervised release revocation hearing, Wagy admitted to the allegations
regarding use of alcohol and failure to attend counseling as directed. The remaining
allegations were dismissed. At the revocation proceeding, the court found that these
offenses together were a Grade C violation, resulting in an advisory Guidelines range
of a six-to-twelve-month sentence. The court imposed a sentence of twenty-four
months with no supervised release to follow. Wagy argues her sentence is
unreasonable on both procedural and substantive grounds. We disagree and affirm
the sentence.
We understand Wagy's argument that the court committed procedural error to
be that the court failed to adequately explain its reasoning for imposing a sentence
that was above the Guidelines range. However, no objection was made at the
sentencing hearing to the court's alleged failure to adequately explain the rationale of
its sentence. Accordingly, we review the argument that the district court committed
procedural error under a plain error standard. See United States v. Gray, 533 F.3d
942, 945 (8th Cir. 2008). Plain error exists where there is an error that is clear and
obvious, affects the appellant's substantial rights, and "'seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.'" United States v. Marcus, 130
S. Ct. 2159, 2164 (2010) (alteration in original) (quoting Pucket v. United States, 129
S. Ct. 1423, 1429 (2009)).
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We find no plain error in the sentencing procedure in this case. The district
court adequately explained its reasoning for imposing the sentence it did. These
reasons included difficulty of supervising Wagy on supervised release, the number
of violations, Wagy's refusal to abide by the terms of her supervised release order, the
need for more structured supervision, and the likelihood that she would become
involved in additional criminal conduct while on supervised release. In addition, the
court explicitly indicated that it was considering all the § 3553(a) factors in imposing
the sentence. We find nothing in this record to justify a conclusion that the court
committed plain error (or any error, for that matter) in its explanation of the sentence
imposed.
The main thrust of Wagy's argument that her sentence is substantively
unreasonable appears to be that the extent of the variance upward, from the advisory
range of six to twelve months to the statutory maximum of twenty-four months, is
excessive and substantively unreasonable. In evaluating the substantive
reasonableness of a sentence, appellate courts "take into account the totality of the
circumstances, including the extent of any variance from the Guidelines range." Gall
v. United States, 552 U.S. 38, 51 (2007). Where the sentence exceeds the Guidelines
range, the court may not apply a presumption of unreasonableness, but it may
consider the extent of the deviation, giving "deference to the district court's decision
that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that
the appellate court might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court." Id.; see also United
States v. Hergott, 562 F.3d 968, 970–71 (8th Cir. 2009) (upward departure was
substantively reasonable where court considered the significant reduction in
defendant's original sentence, the seriousness of defendant's crimes, his failure to
conform his conduct to the law, and the structure and anger management resources
available to defendant in prison).
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In this case, the district court imposed a twenty-four-month sentence, instead
of the six-to-twelve-month sentence recommended by the Guidelines, based primarily
on Wagy's "numerous and repeated violations of the terms of supervision." Wagy's
first violation of parole was less than two months after she began serving her term of
supervised release. During her supervised release, she tested positive for marijuana,
engaged in conduct suggestive of prostitution, was arrested for driving while
intoxicated, failed to participate in court-ordered community service, and led police
on a high-speed chase. Wagy also has a history of mental health issues, but refused
to attend treatment and counseling during her supervised release. She has not sought
employment due to these issues, and consequently is not on the appropriate
medication because she cannot pay for it. These circumstances are sufficient to
justify the extent of the variance in this case.
Accordingly, we affirm the judgment of the district court.
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