USA v. Judy Welch

Filing

UNPUBLISHED OPINION FILED. [09-11227 Affirmed] Judge: JLW , Judge: RHB , Judge: FPB. Mandate pull date is 10/04/2010 for Appellant Judy Darlene Welch [09-11227]

USA v. Judy Welch

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Case: 09-11227

Document: 00511231794

Page: 1

Date Filed: 09/13/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 13, 2010 N o . 09-11227 S u m m a r y Calendar Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA P la in t iff - Appellee v. J U D Y DARLENE WELCH D e fe n d a n t - Appellant

A p p e a l from the United States District Court for the Northern District of Texas U S D C No. 2:09-CR-30-1

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* J u d y Darlene Welch appeals the 36-month sentence imposed following her c o n v ic t io n on a guilty plea to willfully failing to report $622,000 on a federal tax r e t u r n in violation of 26 U.S.C. § 7206(1). She embezzled those funds from b u s in e s s partners and employers. Welch contends her sentence is unreasonable because the district court u s e d the nature and seriousness of the embezzlement both to impose a sentence

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Dockets.Justia.com

Case: 09-11227

Document: 00511231794

Page: 2

Date Filed: 09/13/2010

No. 09-11227 e n h a n c e m e n t under the advisory Sentencing Guidelines and to justify a sixm o n th upward variance from the Guidelines. Although post-Booker, the Guidelines are advisory only, and an ultimate s e n te n c e , "[r]egardless of whether the sentence imposed is inside or outside the G u id e lin e s range", is reviewed for reasonableness under an abuse-of-discretion s t a n d a r d , the district court must still properly calculate the advisory guidelines e n te n c in g range for use in deciding on the sentence to impose. Gall v. United S ta te s , 552 U.S. 38, 49-51 (2007). In that respect, its application of the

G u id e lin e s is reviewed de novo; its factual findings, only for clear error. E.g., U n ite d States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United S ta te s v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). On the other hand, an issue r a is e d on appeal that was not raised in district court is reviewed only for plain e r r o r . E.g.,United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). Pursuant to Gall, we engage in a bifurcated review, considering both the p r o c e d u r a l propriety and substantive reasonableness of the sentence imposed by t h e district court. United States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th C ir . 2009). Welch does not contend that the extent of the variance rendered her s e n te n c e substantively unreasonable. Instead, she maintains her sentence is p r o c e d u r a lly unreasonable, claiming the district court erroneously failed to r e c o g n iz e that the embezzlement on which it based the variance was already a c c o u n t e d for in the guidelines calculation in the form of the base offense level, t h e two-level criminal-source enhancement, and the two-level abuse-of-trust e n h a n c e m e n t . Because Welch failed, in district court, to assert error allegedly c a u s e d by consideration of embezzlement in the base offense level and the c r im in a l-s o u r c e enhancement, those contentions are subject to review under the p la in -e r r o r standard. In any event, even reviewed under the abuse of discretion s t a n d a r d , they fail.

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Case: 09-11227

Document: 00511231794

Page: 3

Date Filed: 09/13/2010

No. 09-11227 T h e district court is to consider the nature, circumstances, and seriousness o f the offense in determining the appropriate sentence. See 18 U.S.C. §

3 5 5 3 (a )(1 )-(2 ) (2010). It imposed the upward variance on the ground that the a d v is o r y Sentencing Guidelines range did "not reflect the actual seriousness of t h e offense" because the embezzlement was not prosecuted and did not "enter in t o the determination of the guidelines, except insofar as the breach of fiduciary d u t y . . . ." The district court was entitled to base its variance upon the

e m b e z z le m e n t , even if that offense was already accounted for in the Guidelines c a lc u la t io n . United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008); United S ta te s v. Williams, 517 F.3d 801, 810-11 (5th Cir. 2008) (holding that a district c o u r t may rely upon factors already incorporated by the Guidelines to support a non-Guidelines sentence). M ore o v er, the presentence investigation report, Welch's objections, and the s e n te n c in g transcript reflect that the district court fully considered and rejected W e lc h 's objections. The district court acknowledged that the embezzlement was a c c o u n t e d for by the abuse-of-trust enhancement, which the court called "the b r e a c h of fiduciary duty". The court nonetheless concluded that an additional s ix months of imprisonment was warranted under § 3553(a) to reflect the nature a n d seriousness of the crime. This was not an abuse of discretion. AFFIRMED.

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