United States v. Eddie Mae Clemons , 313 F. App'x 212 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 07-15456 ELEVENTH CIRCUIT
AUGUST 21, 2008
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 07-00015-CR-001-WDO-5
UNITED STATES OFAMERICA,
Plaintiff-Appellee,
versus
EDDIE MAE CLEMONS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(August 21, 2008)
Before EDMONDSON, Chief Judge, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Eddie Mae Clemons appeals the 78-month sentence
imposed following her plea of guilty to two counts of bank fraud, in violation of
18 U.S.C. § 1344, and one count of false use of a social security card, in violation
of 42 U.S.C. § 408. No reversible error has been shown; we affirm.
Clemons was indicted on 57 counts of bank fraud, one count of false use of
a social security card, and one count of aggravated identity theft. In exchange for
her guilty plea, the government agreed to dismiss 56 counts of the indictment. The
PSI calculated the advisory guideline range to be 27 to 33 months; Clemons
agreed with the guidelines calculation. The PSI noted that the sentencing court
could consider an upward departure under U.S.S.G. § 4A1.3 if it determined that
the criminal history category did not adequately reflect the seriousness of
Clemons’s past criminal record or the likelihood that she would commit other
crimes. Much of Clemons’s 40-plus-year record of criminal acts involved
behavior similar to the conduct at issue in this case; many of these prior
convictions received no criminal history points. The PSI also noted that the
sentencing court could depart upward under U.S.S.G. § 5K2.21 to reflect the
actual seriousness of the offense based on conduct dismissed as part of the plea
agreement. Clemons objected that her criminal history was adequately reflected
and warranted no upward departure.
At the sentencing hearing, the government argued that Clemons’s criminal
history under the guidelines failed to reflect adequately her extensive criminal
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history; the number of convictions Clemons had from age 21 to her present age of
63 -- most of which incurred sentences of no more than 30 days -- failed to reflect
the seriousness of her criminal conduct and, absent an upward departure, provided
insufficient punishment. Clemons argued that the guideline range of 27 to 33
months was appropriate and reasonable under the 18 U.S.C. § 3553 factors, taking
into account her age and medical problems.
The sentencing court noted that Clemons had been sentenced no fewer that
54 times for various offenses, most of which involved bad checks and theft by
deception and fraud. After considering Clemons’s background and extensive prior
record, the sentencing court concluded that Clemons’s criminal history category
substantially under-represented the seriousness of her criminal history and the
likelihood that she would commit other crimes. The court determined that an
increase of eight levels -- to a total offense level of 19 -- was appropriate. This
yielded a guideline range of 63 to 78 months.
The sentencing court also considered the section 3553 factors and
concluded that those factors supported an enhanced sentence. Of particular
concern to the sentencing court was the need to craft a sentence that afforded
adequate deterrence to criminal conduct, protected the public from further crimes
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by Clemons, and reflected the nature and circumstances of the offenses and
Clemons’s history and characteristics. A sentence of 78 months was imposed.*
Clemons maintains that the sentencing court abused its discretion and
imposed an unreasonable sentence when, pursuant to U.S.S.G. § 4A1.3, it departed
upwards from the advisory range based on the inadequacy of the criminal history
category. Clemons argues that the sentencing court’s focus on the number of her
prior offenses -- and not the nature of those mostly petty prior financial offenses --
was contrary to the commentary to that section which states, in relevant part, that
in determining an upward departure from Criminal History Category VI, “the court
should consider that the nature of the prior offenses rather than simply their
number is often more indicative of the seriousness of the defendant’s criminal
record.” U.S.S.G. § 4A1.3, comment. (n.2(B)). Clemons also argues that the
sentencing court overemphasized the 18 U.S.C. § 3553(a) factors of deterrence
*
The sentencing court failed to elicit objections after the sentence was imposed as is required by
United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990), overruled in part on other grounds,
United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993). In the usual case, when the district court
fails to follow the mandate of Jones, this Court will vacate the sentence and remand to allow the
parties an opportunity to present their objections. Id. at 1103. The procedure outlined in Jones
serves the dual purpose of allowing the district court to correct a sentencing error on the spot and to
guide appellate review. See United States v. Cruz, 946 F.2d 122, 124 n.1 (11th Cir. 1991). When,
however, the record on appeal is sufficient to enable review, remand serves no purpose. See id.The objections to sentence raised in Clemons’s appeal were objections first raised by
Clemons in response to the PSI and again at the sentencing hearing. Clemons identifies no
additional objections she would make should this Court remand. Because the arguments raised on
appeal are sufficiently developed in the record, no remand is required.
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and public protection and paid scant attention to other considerations, such as
Clemons’s age and health.
We review a district court’s decision to depart upwardly from the guidelines
range for an abuse-of-discretion. United States v. Magluta, 418 F.3d 1166, 1184
(11th Cir. 2005). We review a final sentence for reasonableness in the light of the
18 U.S.C. § 3553(a) factors. United States v. Winingear, 422 F.3d 1241, 1244-46
(11th Cir. 2005). And that reasonableness review requires us to apply a highly
deferential abuse of discretion standard. See Gall v. United States, 128 S.Ct. 586,
591 (2007).
The record supports fully the sentencing court’s finding that Clemons’s
criminal history and the section 3553(a) factors warranted an upward departure.
As the sentencing court noted, Clemons was sentenced 54 times -- in some cases
on multiple accounts -- over a 42-year period. Many of these sentences involved
offenses similar to the charges to which she pled guilty in the instant case. The
sentencing court focused both on the substance of the convictions in Clemons’s
criminal history and the shear volume of convictions. And it noted also that brief
periods of incarceration imposed in the past had failed to deter Clemons’s criminal
behavior. Clemons’s 42-year pattern of similar financial crimes was not
adequately represented in a criminal history category of VI. The record supports
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an upward departure; and the magnitude of the departure was reasonable. See
United States v. Dixon, 71 F.3d 380, 381 (11th Cir. 1995).
The sentencing court acknowledged that it had considered the section
3553(a) factors and Clemons’s characteristics in determining her sentence; it
spoke specifically about the section 3553(a) factors of deterrence, protection of the
public from further crimes by Clemons, and the need for a sentence that reflects
the nature and circumstances of the offense. No requirement exists that the
sentencing court mention all of the section 3553(a) factors. See United States v.
Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). And the weight accorded to the
section 3553(a) factors is within the sentencing court’s discretion. See United
States v. Amedeo, 487 F.3d 823, 832 (11th Cir.), cert. denied, 128 S.Ct. 671(2007). As the party challenging the reasonableness of the sentence, Clemons
bears the burden of establishing that the sentence imposed was unreasonable in the
light of the record and the section 3553(a) factors, see United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005); she failed to do so.
AFFIRMED.
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