United States v. Dotson , 574 F. App'x 821 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT
July 31, 2014
Elisabeth A. Shumaker
UNITED STATES OF AMERICA, Clerk of Court
Plaintiff - Appellee,
v.
No. 13-7059
DAVANNA DEAMBER DOTSON, a/k/a (D.C. No. 6:12-CR-00089-RAW-1)
Deamber Dotson, a/k/a Deamber Dobson, (E.D. Okla.)
a/k/a Amanda Welch, a/k/a Amber
Bradley, a/k/a Brandi Marie Smith, a/k/a
Deamber Danielle Dotson, a/k/a Alexis,
Defendant – Appellant.
ORDER AND JUDGMENT *
Before MATHESON, EBEL, and McHUGH, Circuit Judges.
This appeal concerns sentencing for adoption fraud. Davanna Dotson told at least
40 adoptive parents in multiple states that she wanted to place her child with them for
adoption. She contacted these prospective parents or their adoption attorneys and
solicited money to facilitate the promised adoption. She was indicted for 22 counts of
wire fraud under 18 U.S.C. § 1343 and pled guilty to one of them.
* This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
At sentencing, the district court determined at least one of Ms. Dotson’s victims,
Carrie Rowe, was a “vulnerable victim” under the United States Sentencing Guidelines
(the “Guidelines”). Based on Ms. Dotson’s crime, her criminal history, and the
vulnerable victim sentencing enhancement, the district court calculated her Guidelines
range at 15 to 21 months and then varied upwards, sentencing Ms. Dotson to 48 months
in prison. She appeals, challenging both the procedural and substantive reasonableness of
her sentence. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a),
we affirm.
I. BACKGROUND
A. Arrest, Plea, and Pre-Sentence
On September 23, 2012, the Muskogee, Oklahoma police arrested Ms. Dotson for
adoption fraud and released her on bond. The very next day, Ms. Dotson promised
another couple to let them adopt her child and asked them for money.
On November 7, 2012, a federal grand jury in the Eastern District of Oklahoma
charged Ms. Dotson with 22 counts of wire fraud, in violation of 18 U.S.C. § 1343, and
one count of mail fraud, in violation of 18 U.S.C. § 1341, for conducting an adoption
fraud scheme. She pled guilty to one count of wire fraud.
The Pre-Sentence Report (“PSR”) calculated Ms. Dotson’s offense level under the
Guidelines to include a two-level “vulnerable victim” enhancement under U.S.S.G.
§ 3A1.1(b)(1). This enhancement applies when “the defendant knew or should have
known that a victim of the offense was a vulnerable victim,” meaning a person “who is
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unusually vulnerable due to age, physical or mental condition, or who is otherwise
particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1(b)(1) & App. note 2.
In addition to the PSR’s recommended vulnerable victim enhancement, the Government
moved for an upward variance or departure. Ms. Dotson objected to the vulnerable
victim enhancement and the Government’s motion.
B. Sentencing Hearing
The district court held a three-day sentencing hearing, during which the
Government presented multiple victim witnesses. The evidence at the hearing
established the following facts.
Because Ms. Rowe and her husband were unable to conceive, she hired an
adoption facilitator, who matched her with Oklahoma City attorney Julie Demastus to
help the couple adopt. Ms. Dotson contacted Ms. Demastus, stating she wanted to put
her unborn child up for adoption. After Ms. Dotson reviewed several profiles Ms.
Demastus had sent her, she selected the Rowes to adopt her child. The Rowes’ profile
contained personal details, including Ms. Rowe’s diagnosed infertility, their hopes and
dreams for a future child, and pictures of the couple and their extended family.
Ms. Demastus started making arrangements for the Rowes to adopt Ms. Dotson’s
child and met with Ms. Dotson to complete the paperwork. After Ms. Rowe and Ms.
Dotson first spoke on May 29, 2009, they talked on the phone up to five or six times a
week. Multiple times, Ms. Dotson called Ms. Rowe claiming she was in labor but then
called back hours later and stated it was false labor.
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On June 25, 2009, an Oklahoma state judge approved Ms. Dotson’s adoption-
related living and travel expenses of $4,736.70, which Ms. Demastus paid to Ms. Dotson
on behalf of the Rowes. After June 25, Ms. Dotson no longer accepted or returned Ms.
Rowe’s phone calls.
Ms. Dotson gave birth on June 27, 2009, but did not tell the Rowes or Ms.
Demastus. Without disclosing she already had given birth, she contacted the social
worker whom Ms. Demastus had hired for this case to ask for more money. The social
worker went to Ms. Dotson’s residence, “knocked on the door, gave her the money, [and]
saw her.” ROA, Vol. II at 88. Ms. Dotson still looked pregnant, but the social worker
“felt a little bit something wasn’t right.” Id. Based on the foregoing, the social worker,
Ms. Rowe, and Ms. Demastus searched the Internet and found evidence of Ms. Dotson’s
past fraud. Ms. Rowe also discovered Ms. Dotson’s local hospital listed Ms. Dotson as
recently having delivered a baby boy. She then realized Ms. Dotson did not intend to
place her baby for adoption.
Ms. Rowe described her reaction to this news:
Shear [sic] devastation. With infertility, your hope is
taken away from you when you can’t have children because
it’s the one thing in the world that you want and you should
be able to have and everyone else can. . . .
That day I got the phone call I was in my office at
work, and of course I immediately lost it.
ROA, Vol. II at 89.
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C. The Sentence
The district court determined, after hearing “an immense amount of testimony
from numerous victims in this case during the initial sentencing hearing,” ROA, Vol. II at
266, “that the vulnerable enhancement does apply specifically to at least one victim,
Carrie Rowe,” id. at 268.
The district court found that Ms. Rowe was a vulnerable victim based on Ms.
Dotson’s “cho[osing] the Rowes over other families as her child’s adoptive parents after
reviewing the profile they had on record with the law firm.” ROA, Vol. II at 268. This
profile contained “such intimate details as their situation (which the [district c]ourt
reasonably infers as the infertility situation leading them to the adoption process), and
about their home, families, hobbies, . . . and activities.” Id. “During the course of their
conduct over a two month period, Mrs. Rowe described the intimate details shared and
the relationship built between her and the defendant.” Id. at 269. The court found “by a
preponderance of the evidence that [Ms. Dotson] did, in fact, know of the particular
susceptibility of Carrie Rowe to this adoption fraud scheme . . . [and] that Carrie Rowe
was, in fact, vulnerable.” Id. It therefore applied the vulnerable victim enhancement
under U.S.S.G. § 3A1.1(b)(1), which increased her offense level by two and increased
her Guidelines range from 10 to 16 months to 15 to 21 months.
The district court denied the Government’s motion for an upward departure but
granted the its motion for an upward variance “based on the nature and circumstances of
the offense, and the history and characteristics of [Ms. Dotson], including [her] continued
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efforts to defraud through this scheme after her arrest and her lack of remorse, thus
indicating [her] increased risk of recidivism.” ROA, Vol. II at 273. The district court
found “by a preponderance of the evidence that a sentenc[e] within the sentencing range
called for by the application of the guidelines does not adequately reflect the goals of
sentencing set forth in [18 U.S.C. § ]3553(a).” Id. Instead, a sentence “above the
advisory guideline range will adequately reflect the seriousness of the offense, provide
just punishment for the defendant, afford deterrence to further criminal conduct and
protect the public from further crimes of this defendant.” Id.
The district court sentenced Ms. Dotson to 48 months in prison to be followed by
three years of supervised release. Ms. Dotson appeals.
II. DISCUSSION
Ms. Dotson challenges both the procedural and substantive reasonableness of her
sentence. “In reviewing [Ms. Dotson’s] sentence, we first examine whether the district
court correctly determined the advisory guideline sentence range, and if so, we review the
sentence for reasonableness.” United States v. Galloway, 509 F.3d 1246, 1250 (10th Cir.
2007).
A. Procedural Reasonableness
Ms. Dotson argues her sentence is procedurally unreasonable because the district
court improperly applied the vulnerable victim sentencing enhancement. She also argues
the Government cannot show by a preponderance of the evidence that this error was
harmless.
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1. Law and Standard of Review
“When considering a district court’s application of the guidelines, we review legal
questions de novo and we review any factual findings for clear error, giving due
deference to the district court’s application of the guidelines to the facts.” United States
v. Cherry, 572 F.3d 829, 831 (10th Cir. 2009) (quotations omitted). Misapplication of the
Guidelines is a procedural sentencing error. See Galloway, 509 F.3d at 1251. Such an
error is reversible unless harmless. See United States v. Alapizco–Valenzuela, 546 F.3d
1208, 1215 (10th Cir. 2008) (“A non-harmless error in calculating the Guidelines range
renders the sentence unreasonable and entitles the defendant to resentencing.”). Error is
harmless if the Government can show by a preponderance of the evidence that “the
record viewed as a whole clearly indicates the district court would have imposed the
same sentence had it not relied on the procedural miscue(s).” United States v. Kieffer,
681 F.3d 1143, 1165 (10th Cir. 2012). “[A]n error is not harmless if it requires us to
speculate on whether the court would have reached the same determination absent the
error.” United States v. Harrison, 743 F.3d 760, 764 (10th Cir. 2014) (quotations
omitted).
2. Parties’ Arguments
Ms. Dotson argues the district court erroneously applied the enhancement for two
reasons. First, she contends the facts did not support the enhancement under Tenth
Circuit law. She argues the district court’s factual findings that Ms. Dotson “chose” the
Rowes and that Ms. Rowe is infertile are insufficient to distinguish Ms. Rowe from other
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adoption fraud victims as “unusually vulnerable or particularly susceptible to the crime
committed.” Aplt. Br. at 13 (citing United States v. Proffit, 304 F.3d 1001, 1007 (10th
Cir. 2002)). She further argues Ms. Rowe had a team of professionals, including her
attorney and social worker, who insulated her from vulnerability by providing advice,
dealing with Ms. Dotson, and handling the financial disbursements.
Second, Ms. Dotson contends the extra-circuit case law on the vulnerable victim
enhancement for adoption fraud supports reversal. See Aplt. Br. at 18 (citing United
States v. Christiansen, 594 F.3d 571, 576 (7th Cir. 2010) (upholding vulnerable victim
enhancement in adoption fraud case because defendant vetted potential victims to find
those who were desperate) and United States v. Stover, 93 F.3d 1379, 1386 (8th Cir.
1996) (reversing the enhancement in adoption fraud case because the victim’s “heartfelt
dreams of having a child” and willingness to “spend such large sums of money . . . did
not create the extra need for societal protection”)). She argues we should follow Stover
because Christiansen focused on the defendant’s extensive screening of victims, which
did not occur in this case.
The Government makes three arguments. First, it asserts that Ms. Dotson seeks to
create a Tenth Circuit “super-standard” beyond what the Sentencing Commission
intended. Aplee. Br. at 18. Second, it cites two extra-circuit cases for the proposition
that relying upon professionals does not eliminate vulnerability. Id. at 22 (citing United
States v. Milstein, 401 F.3d 53, 74 (2d Cir. 2005); United States v. Burgos, 137 F.3d 841,
844 (5th Cir. 1998)). Third, it argues Stover is distinguishable because it applied an older
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standard that required the defendant to target the victim for the enhancement to apply. It
contends the Stover court left the door open for a case like this by stating that “given the
proper set of facts, a person’s infertility, if known to the defendant, might support a
finding of particular susceptibility to adoption-related fraud.” Aplee. Br. at 17 (quoting
Stover, 93 F.3d at 1388)). 1
3. Harmless Error
Although Ms. Dotson’s arguments may have merit, we conclude any error was
harmless. See United States v. Mullikin, No. 13-1290, 2014 WL 3409960, at *1 (10th
Cir. July 15, 2014) (“[W]e need not reach the merits of the Defendant’s arguments . . .
[because] any error was harmless . . . .”). The district court stated “for the record that this
is the same sentence the Court would impose if given the broadest possible discretion,
and the same sentence the Court would impose notwithstanding any judicial fact finding
occurring by adoption of the Presentence Report or at this hearing.” ROA, Vol. II at 282.
The district court backed up this statement with its evaluation of the § 3553 factors in
arriving at the sentence.
This case is different from United States v. Peña-Hermosillo, 522 F.3d 1108 (10th
Cir. 2008), in which the sentencing court erred in determining the Guidelines range but
1
The Government appears to argue that Ms. Rowe’s infertility rendered her a
vulnerable victim. Aplee. Br. at 18-21. But it also acknowledges the district court made
an individualized rather than a class determination as to Ms. Rowe’s vulnerability. Id. at
18-19.
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stated it would have imposed the same sentence irrespective of the error. Id. at 1111-17.
We held the court’s “perfunctory explanation” for why it would have imposed the same
sentence was insufficient to overcome the miscalculation. Id. at 1117-18; see also United
States v. Springer, 315 F. App’x 703, 709 (10th Cir. 2009) (unpublished) (“[In Peña-
Hermosillo] we . . . considered whether a court's alternative sentence renders its
procedural error harmless” but rejected it because “the district court offer[ed] no more
than a perfunctory explanation for its alternative holding.” (quotations omitted)) (cited for
persuasive value under 10th Cir. R. 32.1). By contrast, the district court here fully
explained its reasoning behind the sentence.
The district court said it “based [the sentence] on the nature and circumstances of
the offense, and the history and characteristics of [Ms. Dotson], including [her] continued
efforts to defraud through this scheme after her arrest and her lack of remorse, thus
indicating [her] increased risk of recidivism.” ROA, Vol. II at 273. The court also
explained the sentence “reflects the seriousness of the offense, promotes respect for the
law[,] and provides just punishment for the offense.” Id. at 282. We are not “in the zone
of speculation and conjecture” in determining the preponderance of the evidence shows
that any “error did not affect the court’s selection of the sentence imposed.” United
States v. Conlan, 500 F.3d 1167, 1170 (10th Cir. 2007). Any procedural error the court
made in calculating Ms. Dotson’s Guideline Range was harmless.
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B. Substantive Reasonableness
Ms. Dotson also challenges the substantive reasonableness of her sentence,
arguing the district court did not justify the variance.
1. Law and Standard of Review
“[S]ubstantive reasonableness review broadly looks to whether the district court
abused its discretion in weighing permissible § 3553(a) factors in light of the totality of
the circumstances.” United States v. Sayad, 589 F.3d 1110, 1118 (10th Cir. 2009)
(quotations omitted). “[A] district court’s sentence is substantively unreasonable only if
it is arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. at 1116.
A “major” variance should have “a more significant justification than a minor
one.” Gall v. United States, 552 U.S. 38, 50 (2007). But “the fact that [we] might
reasonably have concluded that a different sentence was appropriate is insufficient to
justify reversal of the district court.” Id. at 51. “It is not for [us] to decide de novo
whether the justification for a variance is sufficient or the sentence is reasonable, and we
must therefore defer not only to a district court’s factual findings but also to its
determinations of the weight to be afforded to such findings.” United States v. Smart,
518 F.3d 800, 808 (10th Cir. 2008) (quotations omitted).
After calculating the Guidelines range, the district court may choose to impose a
sentence above or below the range using either a departure or a variance. “[A]
‘departure’ is the result of applying Chapters Four or Five of the Sentencing Guidelines,
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whereas a ‘variance’ is the result of applying the § 3553(a) factors.” United States v.
Wiseman, 749 F.3d 1191, 1193 n.2 (10th Cir. 2014).
2. No Abuse of Discretion
The Government moved for an upward departure or variance. The district court
denied the Government’s motion for a departure but granted the variance, finding by a
preponderance of the evidence a sentence within the Guidelines range “does not
adequately reflect the goals of sentencing set forth in [18 U.S.C. §] 3553(a).” ROA, Vol.
II at 273. As previously noted, the district court’s determination was “based on the
nature and circumstances of the offense, and the history and characteristics of [Ms.
Dotson], including the [her] continued efforts to defraud through this scheme after her
arrest and her lack of remorse, thus indicating the defendant’s increased risk of
recidivism.” Id. 2 The court determined a sentence “above the advisory Guidelines range
will adequately reflect the seriousness of the offense, provide just punishment for the
defendant, afford deterrence to further criminal conduct, and protect the public from
further crimes of this defendant.” Id.
The calculated Guidelines range, including the vulnerable victim enhancement,
was 15 to 21 months. The district court sentenced Ms. Dotson to 48 months in prison.
2
This referred to Ms. Dotson’s post-arrest attempt to defraud Marc and Dawn
Monette. The day after Ms. Dotson was arrested and released on bond, she contacted the
Monettes, claiming she wanted to place a baby girl for adoption. The Monettes sent her
$1,000 to travel from Oklahoma to Ohio, where they lived.
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Ms. Dotson argues this was substantively unreasonable because the extent of the variance
is not justified by the district court’s reasoning, which, she contends, relied exclusively
on Ms. Dotson’s post-arrest conduct. We disagree.
Despite Ms. Dotson’s contention, the district court stated Ms. Dotson’s post-arrest
conduct was only one factor. The district court heard eight victims testify about the
nature of the crime and how it affected their lives. The court also thoroughly evaluated
the § 3553(a) factors.
Although the variance imposed here is high with or without the vulnerable victim
enhancement, “the fact that [we] might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.” Gall, 552
U.S. at 51. Nothing in the record suggests the district court’s decision was an abuse of
discretion—“arbitrary, capricious, whimsical, or manifestly unreasonable.” United States
v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (quotations omitted).
For these reasons, we reject Ms. Dotson’s substantive reasonableness challenge.
III. CONCLUSION
We affirm the sentence imposed by the district court.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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