United States v. John Searcy, III

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, C. Arlen Beam and Diana E. Murphy (UNPUBLISHED) [4408382] [15-3379]--[Edited showing unpublished 06/07/2016 by JMM]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3379
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
John E. Searcy, III
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Harrison
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Submitted: April 12, 2016
Filed: June 7, 2016
[Unpublished]
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Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.
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PER CURIAM.
After John E. Searcy, III, pleaded guilty to embezzlement of public funds, in
violation of 18 U.S.C. § 641, the district court1 sentenced him to 30 months’
1

The Honorable P.K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas.

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imprisonment. Searcy argues that his sentence is substantively unreasonable. We
affirm.
In 2012, a Social Security Administration (SSA) special agent received a tip
that Searcy had assisted in his father’s death, then burned his father’s body on a
woodpile in their backyard, and thereafter converted his deceased father’s SSA
benefits to his own use. Searcy’s wife was later contacted, under the guise of
updating information she had on file with the SSA. When asked about Searcy’s
father, Searcy’s wife said that the elder Searcy continued to receive mail at their
home, even though he had been away for four years, seeking nontraditional medical
treatment. She also advised that once he was well, Searcy’s father would live with
them again. The SSA and the Arkansas State Police interviewed Searcy, who stated
that his father was alive and sometimes returned home for money. Searcy
acknowledged that he sometimes spent his father’s SSA benefits on personal bills and
living expenses, even though he knew those benefits were for his father. Searcy
reiterated that his father was seeking alternative medical treatment.
In early 2013, the Arkansas State Police again interviewed Searcy, who then
admitted that he had assisted in his father’s death on November 11, 2007. According
to Searcy, after his father had overdosed on drugs, Searcy placed a bag over his
father’s head to ensure his death. Searcy then burned his father’s body and scattered
the ashes and bones. Searcy explained that he and his father previously had decided
that Searcy would not report the death so that Searcy could receive his father’s SSA
benefits. All told, Searcy misappropriated $70,530.40 in public funds.
After completing an investigation, the county attorney’s office advised that it
would not press charges against Searcy for his father’s death because, assuming the
truth of Searcy’s confession, the statute of limitations had expired on the relevant
charges of manslaughter and abuse of a corpse. In February 2015, a federal grand
jury returned a one-count indictment, charging that Searcy “did willfully and
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knowingly embezzle and convert to his own use money in excess of $1,000 from the
Social Security Administration, in violation of 18 U.S.C. § 641.”
During the sentencing hearing, the district court determined that Searcy’s total
offense level was 12, that his criminal history category was I, and that his advisory
sentencing range under the U.S. Sentencing Guidelines Manual (Guidelines) was 10
to 16 months’ imprisonment. Before hearing from the parties, the district court
indicated that it intended to vary upward from the advisory Guidelines range.
Searcy asked the district court to impose a term of probation. He argued that
his father was abusive and controlling and that their relationship caused Searcy to
develop post-traumatic stress disorder. He argued further that his father was bedridden and terminally ill at the time Searcy assisted in his death and that Searcy’s
assistance showed the extent of “the control that his father had over him.” Searcy
pointed to his lack of criminal history and said that he had abided by the law and
secured full-time employment as a personal care assistant while released on bond.
When asked about frivolous federal lawsuits that he had filed against state and federal
officials between 1998 and 2004, Searcy replied that he had been forced by his father
to file them and that none had been filed after his father’s death.
After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), the
district court determined that a sentence within the advisory Guidelines range did not
adequately address Searcy’s offense conduct. The district court traced the history of
his embezzlement, which “all started with a co-bank-account that [Searcy] had with
his father.” The district court recounted that Searcy had assisted in his father’s death,
burned his father’s body, scattered the remains, concealed the fact that his father had
died, and cancelled his father’s Medicare coverage so that the benefit payments would
increase. The district court found that Searcy’s actions showed “knowledge and
intent to defraud the Social Security Administration by depraved means.” The district
court also found that Searcy “concocted this story that his father didn’t believe in
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traditional medicine, that he moved away somewhere for alternative treatments.”
Searcy’s wife’s account of the same story to an SSA manager indicated to the district
court that Searcy “used other people to help carry out this lie for a period of six
years.” The district court acknowledged Searcy’s gainful employment while released
on bond, but contrasted those efforts with the fact that he had been unemployed
throughout the six years he wrongfully received his father’s SSA benefits. The
district court then varied upward and sentenced Searcy to 30 months’ imprisonment.
Searcy argues on appeal that his sentence is substantively unreasonable because
the district court failed to consider and properly weigh the sentencing factors. We
review the substantive reasonableness of a sentence “under a deferential abuse-ofdiscretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “A district court
abuses its discretion when it fails to consider a relevant factor, gives significant
weight to an irrelevant or improper factor, or considers only appropriate factors but
nevertheless commits a clear error of judgment by arriving at a sentence that lies
outside the limited range of choice dictated by the facts of the case.” United States
v. San-Miguel, 634 F.3d 471, 475 (8th Cir. 2011) (quoting United States v. Jones, 509
F.3d 911, 913 (8th Cir. 2007)); see also Gall, 552 U.S. at 59 (noting that the range of
choice dictated by the facts of a case was significantly broadened after the Guidelines
became advisory).
Searcy contends that the district court should have given more weight to the
mitigating factors of his mental illness, his lack of criminal history, his efforts to
rehabilitate himself, and his low risk of recidivism. The district court considered
these arguments, however, and reasonably determined that an upward variance was
necessary due to the depraved circumstances of the offense. Searcy also argues that
the district court should not have given any weight to the frivolous federal lawsuits
he filed because he had been coerced into filing those lawsuits by his abusive father.
Again, the district court reasonably found that Searcy was not credible and that the
lawsuits were filed of his own volition. Finally, we reject Searcy’s argument that the
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district court unfairly sentenced him for the role he played in his father’s death and
in disposing of his father’s corpse. His father’s death allowed Searcy to embezzle the
public funds distributed by the SSA. Searcy’s disposal of the corpse allowed him to
conceal his father’s death and continue to embezzle public funds. The district court
acted within its broad discretion when it weighed the sentencing factors and decided
to vary upward from the advisory Guidelines range. See San-Miguel, 634 F.3d at 476
(“The district court has wide latitude to weigh the § 3553(a) factors in each case and
assign some factors greater weight than others in determining an appropriate
sentence.” (quoting United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009))).
Searcy argues that the district court failed to satisfy its duty to avoid
unwarranted sentence disparities because it sentenced him more harshly than a
defendant from the Eastern District of Arkansas who had defrauded the SSA of more
than $200,000 and was sentenced to probation. Searcy has not explained how the
defendant in that case was similarly situated to Searcy, particularly in terms of the
nature and circumstances of the offense, and thus we cannot say that the district court
erred in sentencing Searcy to a term of imprisonment.
The judgment is affirmed.
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