USA v. Jovanna Gardner

Filing

UNPUBLISHED OPINION FILED. [13-20175 Affirmed ] Judge: EGJ , Judge: JES , Judge: EBC Mandate pull date is 02/06/2014 for Appellant Jovanna Renee Gardner [13-20175]

Case: 13-20175

Document: 00512503550

Page: 1

Date Filed: 01/16/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-20175
Summary Calendar

FILED
January 16, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOVANNA RENEE GARDNER,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-199-2
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Jovanna Renee Gardner appeals the 27-month term of imprisonment
imposed following her guilty plea conviction of misprision of a felony. She
contends that her sentence is procedurally and substantively unreasonable as
well as unconstitutionally disproportionate to her offense.
Generally, we review criminal sentences for reasonableness. Gall v.
United States, 552 U.S. 38, 46 (2007). We first determine whether the district

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 13-20175
court committed any procedural errors, such as improperly calculating the
defendant’s advisory sentencing-guidelines range. Id. at 51. In making that
determination, we review the district court’s findings of fact for clear error and
its interpretation and application of the Sentencing Guidelines to those facts
de novo. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
If the district court’s sentencing decision is procedurally sound, we will
“consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard. . . . tak[ing] into account the totality of the
circumstances.” Gall, 552 U.S. at 51.
Gardner argues that the district court procedurally erred when it
enhanced

her

sentence

under

United

States

Sentencing

Guideline

§ 2B1.l(b)(H) based on the intended loss resulting from the fraudulent scheme
underlying her offense. Gardner preserved this challenge to her sentence
through her objections to the presentence report. However, she has not shown,
in light of her knowledge of, and participation in, the fraudulent scheme of
Irvin Warren Lawrence, that the district court erred in its method of
determining the amount of intended loss or clearly erred in calculating that
intended loss. See United States v. Klein, 543 F.3d 206, 214 (5th Cir. 2008);
United States v. Hammond, 201 F.3d 346, 351 (5th Cir. 1999).
For the first time on appeal, Gardner argues that her sentence is
substantively unreasonable because it is greater than necessary to achieve the
goals of 18 U.S.C. § 3553(a). When a defendant raises a sentencing challenge
on appeal that she did not present to the district court, we will review the
decision for plain error only. See Puckett v. United States, 556 U.S. 129, 135
(2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To prevail
on plain error review, a defendant must show that an error occurred, that the
error was clear or obvious, and that the error affected her substantial rights.

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Peltier, 505 F.3d at 392. If those factors are established, we have the discretion
to correct the forfeited error, but we will not exercise that discretion unless the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. Gardner contends that a shorter sentence is appropriate
because she played a minimal role in the fraudulent scheme and her offense
did not physically harm anyone. Gardner’s disagreement with the district
court’s assessment of an appropriate sentence does not rebut the presumption
of reasonableness that attaches to her within-guidelines sentence and does not
establish an abuse of discretion. See Gall, 552 U.S. at 51; United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Gardner has not shown error, plain
or otherwise.
For the first time on appeal, Gardner also argues that her sentence
violates the Eighth Amendment to the Constitution because it is grossly
disproportionate to her offense. In analyzing whether a defendant’s sentence
is so grossly disproportionate to her offense that it constitutes cruel and
unusual punishment, we make a threshold comparison of the gravity of the
offense against the severity of the sentence imposed. United States v. Thomas,
627 F.3d 146, 160 (5th Cir. 2010). Only if that threshold comparison suggests
disproportionality will we conduct a deeper inquiry into sentences for similar
crimes in the same and other jurisdictions.

Id.

The federal sentencing

guidelines are a “convincing objective indicator of proportionality.” United
States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993). Gardner’s 27month sentence was within her properly calculated advisory guidelines range.
Thus, she has not shown that her sentence is grossly disproportionate to her
offense. See id.
AFFIRMED.

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