United States v. Tucker ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 06-4122
RAMONA OBERA TUCKER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(6:05-cr-00416-HMH)
Argued: October 27, 2006
Decided: January 16, 2007
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
Vacated and remanded by published opinion. Judge Williams wrote
the opinion, in which Judge Michael and Judge King joined.
COUNSEL
ARGUED: James Barlow Loggins, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenville, South Carolina, for Appellant. David Calhoun Stephens,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greenville, South Carolina, for Appellee. ON
BRIEF: Reginald I. Lloyd, United States Attorney, Greenville, South
Carolina, for Appellee.
2 UNITED STATES v. TUCKER
OPINION
WILLIAMS, Circuit Judge:
Ramona Obera Tucker appeals her sentence of 144 months’ impris-
onment for one count of bank fraud, in violation of 18 U.S.C.A.
§ 1344 (West 2000). She concedes that the district court’s decision to
impose a variance sentence was reasonable but argues that the extent
of the variance was unreasonable. Because the district court did not
provide compelling reasons to justify the extent of the variance and
we conclude that the circumstances of this case do not warrant such
an extreme variance, we vacate Tucker’s sentence and remand for
resentencing.
I.
A.
Tucker was indicted on one count of bank fraud, in violation of 18
U.S.C. § 1344. The indictment charged her with fraudulently and
without authorization obtaining approximately $150,000 from Bank
of America. On October 18, 2005, Tucker entered into a plea agree-
ment with the Government, in which she stipulated that the loss
amount for sentencing purposes was between $70,000 and $120,000.
She pleaded guilty the same day.
Tucker’s presentence report (PSR) sets forth the facts of this case,
which are undisputed. The Melloul-Blamey Construction Company in
Greenville, South Carolina hired Tucker as office manager in October
2000. She began embezzling funds beginning in June 2002, by setting
up a company called Hummingbird Marketing, of which she was sole
proprietor, and using it as a "dummy vendor." (J.A. at 56.) She would
request that a company official at Melloul-Blamey write checks to
Bank of America for the purpose of purchasing cashier checks to pay
vendors. She then took the company checks to Bank of America,
where she exchanged them for certified checks made out to her, to
cash, or to Hummingbird Marketing and not to legitimate vendors.
Tucker then used the money to pay her personal credit card bills and
to make restitution payments to the United States Clerk of Court for
UNITED STATES v. TUCKER 3
two previous fraud convictions. Tucker’s prior convictions were for
similar offenses, and she was still serving the term of supervised
release from the second offense when she was arrested and charged
in this case. A review of Bank of America records revealed that
Tucker embezzled a total of $77,222.83 from her employer.
Consequently, the PSR calculated Tucker’s total offense level
under the Guidelines to be 13. See U.S. Sentencing Guidelines Man-
ual § 2B1.1(a)(1), (b)(1)(E) (2004). The total offense level of 13,
combined with her criminal history category of IV,1 resulted in an
advisory guidelines range of 24 to 30 months’ imprisonment and three
to five years’ supervised release.
The PSR also indicated that Tucker had "a long history of psychiat-
ric treatment for chronic depression and multiple suicide attempts"
and that she "report[ed] experiencing symptoms of depression dating
back to teenage years due to childhood abuse." (J.A. at 60.) She was
diagnosed with major depressive disorder and an unspecified person-
ality disorder. (J.A. at 61.)
B.
The district court conducted a sentencing hearing on January 18,
2006. Tucker was offered an opportunity to allocute but chose not to
make a statement. Although her attorney argued for a sentence within
the guidelines range, the district court, after considering the guide-
1
Tucker’s prior convictions resulted in a subtotal criminal history score
of 6, which would have placed her in criminal history category III. See
U.S. Sentencing Guidelines Manual ch. 5, pt. A (2004). One point, how-
ever, was added due to her having committed this offense less than two
years after her release from custody, and two points were added due to
her having committed this offense while on supervised release from pre-
vious sentences. See U.S. Sentencing Guidelines Manual § 4A1.1 cmt.
n.4 (2004) ("Two points are added if the defendant committed any part
of the instant offense . . . while under any criminal justice sentence,
including . . . supervised release."). This resulted in a total of nine crimi-
nal history points, establishing Tucker’s criminal history category of IV.
See U.S. Sentencing Guidelines Manual Ch. 5 Pt. A (2004) (providing
that 7, 8, or 9 criminal history points establish a criminal history category
of IV).
4 UNITED STATES v. TUCKER
lines factors and the factors set forth at 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2006), determined that an upward variance was war-
ranted. The district court recognized that it was "required to consider
a sentence sufficient but not greater than necessary to accomplish the
purposes of sentencing" and stated that it had to "fashion a sentence
which it feels will fit the crime and protect society." (J.A. at 37.)
While the district court considered all of the § 3553(a) factors, it
found that the most significant factor in Tucker’s case was the need
"to protect the public from further crimes of the defendant." (J.A. at
38.) The district court then explained that "[t]he only way [it knew]
to do that [was] to keep her away from society"; although the court
was "not going to keep her away for the rest of her life," it intended
to "fashion a sentence which will significantly keep her away from
the public." (J.A. at 38.)
The district court also addressed one other factor at relative length,
explaining that it "should consider ‘the nature and circumstances of
the offense and the history and characteristics of the defendant.’"
(J.A. at 37-38.) The court indicated that the offense was serious, in
that over $77,000 was embezzled in a manner characteristic of Tuck-
er’s previous crimes, and described her as "a dedicated embezzler and
thief." (J.A. at 38.) In the words of the district court, "She’s a dedi-
cated thief and apparently she always will be." (J.A. at 37.) "[T]he
record reflects in this case that she is an habitual thief, scheming thief.
She gets out of jail . . . for stealing from her employers[,] . . . applies
for jobs and gets access to the funds of the employer[, a]nd after a
short period of time she starts embezzling significant funds . . . . And
she does this over and over again. And I have no reason to think that
it will not continue." (J.A. at 37.) The district court recognized that
"she has suffered from depression and other problems," but stated that
"there is nothing in her history that indicates that what she does as far
as committing these offenses is not knowingly done and is not just the
character that she is." (J.A. at 37.)
The district court noted the need to fashion a sentence that would
"reflect the seriousness of the offense, . . . promote respect for the
law[, ] provide just punishment for the offense," promote deterrence,
and provide the defendant with needed training or medical care in the
most effective manner. (J.A. at 38.) The district court did not, how-
UNITED STATES v. TUCKER 5
ever, elaborate on these factors or indicate how the factors were better
served by a variance sentence. The district court stated that although
it could depart upward under the Guidelines to a 60 month sentence
because Tucker’s criminal history category did not adequately reflect
the extent of her criminal past, a 60 month sentence "would not be
appropriate." (J.A. at 39.) This statement did not include an explana-
tion of how the district court arrived at the 60 month figure or why
it found a 60 month sentence inappropriate. The district court ulti-
mately imposed a variance sentence of 144 months, followed by a
five year term of supervised release during which Tucker would pay
restitution of $77,223.83 for this offense. The sentence also required
Tucker to participate in a mental health treatment program and not to
obtain employment in which she would have access to her employer’s
funds during the five year period of supervised release that will fol-
low her term of imprisonment.
Tucker timely noted an appeal to this court. We have jurisdiction
to hear this appeal pursuant to 18 U.S.C.A. § 3742(a) (West 2000)
(providing for appellate jurisdiction over a "final sentence" entered by
the district court) and 28 U.S.C.A. § 1291 (West 2006) (providing for
appellate jurisdiction over "final decisions" of the district court).
II.
A.
We review the sentence imposed for reasonableness. United States
v. Booker, 543 U.S. 220, 261 (2005). In determining whether a sen-
tence was reasonable, we review the district court’s legal conclusions
de novo and its factual findings for clear error. United States v.
Hampton, 441 F.3d 284, 287 (4th Cir. 2006). "Reasonableness review
involves both procedural and substantive components." United States
v. Moreland, 437 F.3d 424, 434 (4th Cir. 2006).
Post-Booker, a sentencing court must engage in a multi-step pro-
cess that begins with correctly determining the defendant’s Guideline
range. Moreland, 437 F.3d 424 at 432. "Next, the court must deter-
mine whether a sentence within that range . . . serves the factors set
forth in § 3553(a) and, if not, select a sentence [within statutory lim-
its] that does serve those factors." Id. (alterations in original) (internal
6 UNITED STATES v. TUCKER
quotation marks omitted).2 "In doing so, the district court should first
2
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006) provides that in
determining the particular sentence to be imposed, the district court must
consider,
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defen-
dant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treat-
ment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for
—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guide-
lines —
(i) issued by the Sentencing Commission pursuant to sec-
tion 994(a)(1) of title 28, United States Code, subject to
any amendments made to such guidelines by act Congress
(regardless of whether such amendments have yet to be
incorporated by the Sentencing Commission into amend-
ments issued under section 994(p) of title 28); and
(ii) that, except as provided in section 3742(g), are in
effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised
release, the applicable guidelines or policy statements issued
by the Sentencing Commission pursuant to section 994(a)(3)
of title 28, United States Code, taking into account any
amendments made to such guidelines or policy statements by
act of Congress (regardless of whether such amendments
UNITED STATES v. TUCKER 7
look to whether a departure is appropriate based on the Guidelines
Manual or relevant case law." Id. If it is, the court may depart, or if
the "departure range still does not serve the factors set forth in
§ 3553(a), the court may then elect to impose a non-guideline sen-
tence (a ‘variance sentence’)." Id. As part of this process, "[t]he dis-
trict court must articulate the reasons for the sentence imposed,
particularly explaining any departure or variance from the guideline
range." Id.
Reviewing the reasonableness of the resulting sentence is a "com-
plex and nuanced" task that "requir[es] us to consider the extent to
which the sentence imposed by the district court comports with the
various, and sometimes competing, goals of § 3553(a)." Id. at 433
(internal quotation marks omitted). "The reasonableness of a sentence
ultimately will turn on the particular factors of each case." Id. We
have previously explained that a "district court’s job is not to impose
a ‘reasonable’ sentence. Rather, a district court’s mandate is to
impose a sentence sufficient, but not greater than necessary, to com-
ply with the purposes of § 3553(a)[ ]. Reasonableness is the appellate
standard of review in judging whether a district court has accom-
plished its task." United States v. Davenport, 445 F.3d 366, 370 (4th
have yet to be incorporated by the Sentencing Commission
into amendments issued under section 994(p) of title 28);
(5) any pertinent policy statement —
(A) issued by the Sentencing Commission pursuant to sec-
tion 994(a)(2) of title 28, United States Code, subject to any
amendments made to such policy statement by act of Con-
gress (regardless of whether such amendments have yet to be
incorporated by the Sentencing Commission into amend-
ments issued under section 994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in effect
on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
8 UNITED STATES v. TUCKER
Cir. 2006) (quoting United States v. Foreman, 436 F.3d 638, 644 n.1
(6th Cir. 2006) (emphasis in original)). Ultimately,
[T]he overarching standard of review for unreasonableness
will not depend on whether we agree with the particular sen-
tence selected, but whether the sentence was selected pursu-
ant to a reasoned process in accordance with law, in which
the court did not give excessive weight to any relevant fac-
tor, and which effected a fair and just result in light of the
relevant facts and law.
United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (internal
citation omitted).
In reviewing a variance sentence, we must consider "whether the
district court acted reasonably with respect to (1) the imposition of a
variance sentence, and (2) the extent of the variance." Moreland, 437
F.3d at 434. "Generally, if the reasons justifying the variance are tied
to § 3553(a) and are plausible, the sentence will be deemed reason-
able. However, where the variance is a substantial one . . . we must
more carefully scrutinize the reasoning offered by the district court in
support of the sentence." Id. "The farther the court diverges from the
advisory guideline range, the more compelling the reasons for the
divergence must be." Id.
B.
In reviewing Tucker’s sentence, we are informed by our recent
jurisprudence regarding variance sentences. We also turn to the
Booker decision itself for guidance. Booker reflects the values under-
lying the Sixth Amendment by mandating individualized judgment
through the requirement that "without the individual attention of a
jury to find facts, a defendant cannot constitutionally be sentenced by
a judge without discretion to consider all relevant factors under the
sentencing statutes." United States v. Cage, 451 F.3d 585, 593 (10th
Cir. 2006). The decision also "refus[es] to . . . nullify the entirety of
Congress’s purpose in passing the 1984 Sentencing Act that judicial
discretion on sentencing should be limited by the decisions of a pub-
licly accountable body, the Sentencing Commission." Cage, 451 F.3d
at 593. See also Booker, 543 U.S. at 246 ("The . . . approach, which
UNITED STATES v. TUCKER 9
we now adopt, would . . . make the Guidelines system advisory while
maintaining a strong connection between the sentence imposed and
the offender’s real conduct — a connection important to the increased
uniformity of sentencing that Congress intended its Guidelines system
to achieve."). It is with these principles in mind that we review the
reasonableness of Tucker’s sentence.
In arguing that her sentence was unreasonable, Tucker relies pri-
marily on our decisions in Hampton and Davenport. She contends
that the district court arrived at a sentence that represents an increase
of almost five times the top of the guideline range by (1) giving
excessive weight to a single § 3553(a) factor — the need to protect
the public from future crimes, and (2) giving too little weight to one
aspect of another — her characteristics as a person who suffers from
mental health problems due to childhood abuse. Tucker further argues
that sufficiently compelling reasons do not exist to justify the extent
of the variance imposed.
We turn first to Tucker’s argument that the district court erred in
finding that although all of the § 3553(a) factors applied to her, one,
the need "to protect the public from further crimes of the defendant,"
was "[t]he most significant." (J.A. at 38.) We do not find fault with
the district court’s determination that one factor weighed more heav-
ily than others in Tucker’s case. The district court also considered
other factors that weighed in favor of an upward variance, and Tucker
herself concedes "that the district court’s view of [her] risk of recidi-
vism could support a sentence above that recommended by the guide-
lines." (Appellant’s Br. at 19-20.) Furthermore, the district court did
take into account Tucker’s mental health problems. It was not unrea-
sonable for the district court to find that because Tucker’s depression
did not drive her to embezzle money, it should not be accorded great
weight as a mitigating factor. If sentencing courts are to have the dis-
cretion to make an individualized determination based on a consider-
ation of all the relevant factors that Booker mandates, we cannot
foreclose district courts from assigning certain factors more or less
weight than others, as the circumstances of a particular case may dic-
tate. This is not to suggest, however, that district courts have unbri-
dled sentencing discretion. Sentencing courts remain obligated not to
"give excessive weight to any relevant factor" and to impose a sen-
tence "which effect[s] a fair and just result in light of the relevant
10 UNITED STATES v. TUCKER
facts and law." Green, 436 F.3d at 457. And, "[t]he farther the court
diverges from the advisory guideline range, the more compelling the
reasons for the divergence must be." Moreland, 437 F.3d at 434.
We note that Tucker’s case is distinguishable from Hampton, in
which we concluded that a district court gave excessive weight to one
factor where it "relied on (rather than merely mentioned) only one
aspect of one § 3553(a) factor — Hampton’s status as sole custodial
parent of his two small children," and when no other sentencing factor
weighed in favor of a significant downward variance. Hampton, 441
F.3d at 289. There, we noted that Hampton was behind in child sup-
port for his other children and that family responsibilities are a dis-
couraged reason for a departure under the Guidelines. Consequently,
his care for his children did not warrant the substantial variance
granted Hampton (probation instead of 57 to 71 months’ imprison-
ment). Because, after considering all the circumstances, we could dis-
cern from the record no other basis for a reduction of such magnitude
(eliminating the defendant’s entire advisory term of imprisonment
under the Guidelines of at least 57 months in favor of probation), we
concluded that Hampton’s sentence was unreasonable. Id. at 289.
C.
We next address whether the reasons articulated by the district
court are sufficiently compelling to justify the extent of the variance.
For the following reasons, we conclude that although Tucker’s risk of
recidivism could justify a variance sentence, the district court did not
adequately justify the extent of the variance imposed.
In reaching this conclusion, we are informed by our decision in Dav-
enport.3 In Davenport, we held that a 120 month sentence that was
more than three times the top of the defendant’s advisory guideline
range was unreasonable. There, the defendant was also a dedicated
3
We note that the district court was without the benefit of our decisions
in United States v. Davenport, 445 F.3d 366 (4th Cir. 2006), United
States v. Hampton, 441 F.3d 284 (4th Cir. 2006), and United States v.
Moreland, 437 F.3d 424 (4th Cir. 2006) when it sentenced Tucker, as
those cases were decided after Tucker’s proceedings in the district court
were complete.
UNITED STATES v. TUCKER 11
thief — he was involved in pickpocketing and credit card theft and
had a substantial criminal history of similar conduct. 445 F.3d at 371-
72. We held that while "[t]he district court reasonably concluded that
a sentence above the advisory guideline range was warranted," id. at
371, as Davenport had double the number of criminal history points
needed to place him in the highest criminal history category, and Dav-
enport seemingly had acknowledged that his culpability was greater
than he had admitted pursuant to the plea agreement, the circum-
stances were not so compelling as to "justify a sentence so far above
the top of the advisory guideline range." Id. at 372.
Tucker’s sentence represents a greater variance than the sentence
held unreasonable in Davenport. It is longer in scope — a 114 month
increase from the top of the advisory guidelines range as compared
with Davenport’s 83 month increase — and Tucker’s sentence repre-
sents a greater deviation from the guidelines range — nearly five
times the top of the applicable guidelines range as compared with
approximately three times the top of that range. In both Tucker’s case
and in Davenport, however, the basis for the variance sentence is sub-
stantially the same — the risk of recidivism in a defendant with a
strong history of engaging in similar criminal conduct who is seem-
ingly undeterred by prior incarceration. Even taking into account the
uncharged crimes that the district court found Tucker had committed,
her criminal history remains substantially less extensive than that of
Davenport, who had double the number of criminal history points
necessary to place him in the highest criminal history category.4
In this case, the district court offered little explanation for its con-
clusion that a 144 month sentence was necessary to serve the goals
of § 3553(a). Although the district court indicated that it could depart
to a sentence of 60 months under the Guidelines, it did not explain
the basis for this calculation. If the uncharged crimes that the district
court found that Tucker committed would have given her enough
4
Protecting unsuspecting members of society from a pickpocket and
credit-card thief seemingly would present more difficulty than protecting
potential victims from Tucker, who stole primarily from employers
whose funds she was permitted to access, as a future employer presum-
ably would have the opportunity to check her references before hiring
her.
12 UNITED STATES v. TUCKER
criminal history points to place her in the highest criminal history cat-
egory, her total offense level of 13 would have given her a guidelines
range of 33 to 41 months’ imprisonment. See U.S. Sentencing Guide-
lines Manual ch. 5, pt. A (sentencing table). Moreover, the district
court did not explain why a 60 month sentence was "[in]appropriate,"
(J.A. at 39), or why a 144 month sentence better served the goals of
§ 3553(a).
Furthermore, the district court indicated that a partial basis for the
sentence imposed was that the crime was serious because $77,222.83
— the amount embezzled — represented a significant sum. To be
sure, the amount Tucker stole constituted a large sum of money. It
was, however, at the low end of the range necessary to give her the
eight-level enhancement that she received under the Guidelines. See
U.S. Sentencing Guidelines Manual § 2B1.1(b)(1)(E) (2004)
(enhancement for loss to the victim of $70,000 - $120,000). To have
received a 144 month sentence under the Guidelines, however,
Tucker would have had to embezzle a minimum of $50,000,000, an
amount almost 1300 times greater than the sum she embezzled.
Tucker’s sentence represented a 480% increase over the high end
of her guidelines range. The degree of this variance far exceeds that
of other sentences that we and our sister circuits have determined
were unreasonable. See, e.g., United States v. Curry, 461 F.3d 452,
460-61 (4th Cir. 2006) (concluding that a downward variance of 70%
was unreasonable in extent); Moreland, 437 F.3d at 436-37 (conclud-
ing that although a downward variance was warranted, the circum-
stances of the case were not sufficiently compelling to justify a two-
thirds reduction from the bottom of the defendant’s guidelines range);
United States v. McMannus, 436 F.3d 871, 875 (8th Cir. 2006)
(downward variances of 54% for one defendant and 58% for another
were unreasonable). But cf. United States v. Williams, 435 F.3d 1350,
1355 (11th Cir. 2006) (per curiam) (affirming, as reasonable, a 52%
downward variance where the district court had articulated appropri-
ate reasons concerning the circumstances of the case). Having looked
at these cases, we do not mean to suggest that reasonableness is deter-
mined by a strict mathematical comparison. In Moreland, for exam-
ple, we referenced United States v. Jordan, 435 F.3d 693 (7th Cir.
2006), as a case involving "truly compelling circumstances justifying
UNITED STATES v. TUCKER 13
the imposition of a sentence nearly twice the maximum of the advi-
sory guideline range." Moreland, 437 F.3d at 437 n.10.
The circumstances of this case, however, are simply not so compel-
ling as to justify a sentence nearly five times the maximum of the
advisory guidelines range. Many of the bases articulated by the dis-
trict court for the sentence imposed are contemplated by the Guide-
lines: Tucker’s commission of this offense less than two years after
her release from custody and during her period of supervised release
from another offense increased her criminal history category from III
to IV; the Guidelines contemplate departures for defendants whose
criminal history is not adequately reflected by their criminal history
score; and the amount of loss suffered represents an integral part of
the calculation of the total offense level for the offense of conviction.
And, as discussed above, the district court offered no compelling jus-
tification for why a 144 month sentence was necessary to protect soci-
ety. Although the risk of recidivism could justify an upward variance,
the extreme increase reflects an exercise of judicial discretion of the
kind that the Sentencing Act was designed to avoid. In adopting the
approach that it did, it is clear that the Booker Court sought to "main-
tain[ ] a strong connection between the sentence imposed and the
offender’s real conduct — a connection important to the increased
uniformity of sentencing that Congress intended its Guidelines system
to achieve." Booker, 543 U.S. at 246. In imposing an upward variance
of such magnitude in large part due to its conclusion that Tucker was
a "scheming thief" and "apparently always w[ould] be," (J.A. at 37),
the district court failed to maintain a strong connection between the
real conduct and the sentence imposed. Accordingly, we conclude
that the extent of the upward variance was not reasonable in this case.
III.
Because the extent of the upward variance imposed by the district
court was unreasonable, we vacate Tucker’s sentence and remand for
resentencing.
VACATED AND REMANDED