US v. Kevin Carden


UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 1:15-cr-00016-MJG-2 and 1:15-cr-00016-MJG-1. Copies to all parties and the district court. [1000031002]. [16-4349, 16-4350]

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Appeal: 16-4349 Doc: 41 Filed: 02/27/2017 Pg: 1 of 5 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4349 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KEVIN CARDEN, Defendant - Appellant. No. 16-4350 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BEVERLY CARDEN, Defendant - Appellant. Appeals from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge. (1:15-cr-00016-MJG-2; 1:15-cr-00016-MJG-1) Submitted: February 23, 2017 Decided: February 27, 2017 Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge. Appeal: 16-4349 Doc: 41 Filed: 02/27/2017 Pg: 2 of 5 Affirmed by unpublished per curiam opinion. Gerald C. Ruter, LAW OFFICE OF GERALD C. RUTER PC, Baltimore, Maryland; James Wyda, Federal Public Defender, Sapna Mirchandani, Greenbelt, Maryland, for Appellants. Rod J. Rosenstein, United States Attorney, Jefferson McClure Gray, Evan T. Shea, Assistant United States Attorneys, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 16-4349 Doc: 41 Filed: 02/27/2017 Pg: 3 of 5 PER CURIAM: Kevin Carden and Beverly Carden owned and operated AccuPay, Inc., a payroll service company that received money from small companies for the purpose of making payroll payments to AccuPay’s clients’ employees and to withhold and pay over to the Internal Revenue Service payroll tax withholdings. Instead of making the agreed payments, the Cardens diverted funds from client accounts into their personal checking accounts to be used for the Cardens’ personal expenses. Kevin Carden pled guilty to one count of wire fraud, 18 U.S.C. § 1343 (2012), and one count of filing a false tax return, 26 U.S.C. § 7206(1) (2012), and Beverly pled guilty to one count of mail fraud, 18 U.S.C. § 1343, and one count of filing a false tax return. The district court varied upward as to both Kevin and Beverly, sentencing Kevin to 72 months’ imprisonment, and Beverly to 60 months’ imprisonment. They appeal, arguing that their sentences are substantively unreasonable. We review reasonableness, a sentence applying for “an We affirm. procedural and abuse-of-discretion Gall v. United States, 552 U.S. 38, 51 (2007). substantive standard.” A district court “has flexibility in fashioning a sentence outside of the Guidelines range,” United States v. Diosdado–Star, 630 F.3d 359, 364 (4th Cir. 2011), and need only “set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments 3 Appeal: 16-4349 Doc: 41 Filed: 02/27/2017 Pg: 4 of 5 and has a reasoned basis” for its decision. United States, 551 U.S. 338, 356 (2007)). sentence, we consider whether the Id. (quoting Rita v. “In reviewing a variant sentencing court acted reasonably both with respect to its decision to impose such a sentence and with respect to the extent of the divergence from the sentencing range.” United States v. Washington, 743 F.3d 938, 944 (4th Cir. 2014) (internal quotation marks omitted). The district Guidelines range court as 57 properly to 71 calculated months, Guidelines range as 46 to 57 months. and Kevin Carden’s Beverly Carden’s The court heard arguments from both parties, including the Government’s suggestion of a below-Guidelines sentence for Beverly and a within-Guidelines sentence for Kevin, considered the sentencing factors of 18 U.S.C. § 3553(a) (2012), and explained its rationale for the slight upward variant sentences it imposed. The district court considered the arguments asserted in mitigation, but concluded that a slight upward variance from the Guidelines range was justified in each case due to the long-term nature of the fraud, the extensive victim impact, and the need for deterrence. Having reviewed the record and the district court’s thorough explanation of its sentences, we conclude that the Cardens’ respective variance sentences are Accordingly, we affirm the district court’s judgments. We substantively reasonable. dispense with oral argument because the facts and legal contentions 4 Appeal: 16-4349 Doc: 41 Filed: 02/27/2017 Pg: 5 of 5 are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5

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