United States v. Kalili , 100 F. App'x 903 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 03-4927
ROSELINE MAHEALANI VEALE KALILI,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-03-75)
Argued: May 7, 2004
Decided: June 16, 2004
Before WIDENER and GREGORY, Circuit Judges, and
C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Dennis Kyle Sampson, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alex-
andria, Virginia, for Appellant. I. Lionel Hancock, III, BOHANNON,
BOHANNON & HANCOCK, Norfolk, Virginia, for Appellee. ON
BRIEF: Paul J. McNulty, United States Attorney, Michael J. Elston,
2 UNITED STATES v. KALILI
Assistant United States Attorney, Lisa R. McKeel, Assistant United
States Attorney, Alexandria, Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The government appeals the district court’s decision to depart
downward in the sentence imposed upon the defendant. We affirm.
I.
Roseline Kalili’s daughter stole checks made payable to various
vendors serving her employer. Kalili became involved with the crimi-
nal scheme at issue when her daughter brought the checks home,
forged the payee’s indorsement onto the back of the checks, and des-
ignated Kalili as the new payee. Kalili indorsed the checks by signing
her name and affixing her social security number on the back of the
checks.
The two women deposited into Kalili’s account a single "test"
check in the amount of approximately $1600. Before the deposit,
Kalili had less than $10 in this account. After the check cleared, Kalili
and her daughter made several cash withdrawals and made purchases
at two stores. They later attempted to deposit more than $800,000
worth of checks into Kalili’s account. The bank quickly detected
these obviously suspicious transactions, refused to honor the checks,
and contacted the authorities. Kalili immediately entered a plea of
guilty to bank fraud, 18 U.S.C. § 1344, and waived her right to an
indictment. Kalili’s base offense level was six for bank fraud,
U.S.S.G. § 2B1.1(a), but because the intended loss exceeded
$800,000, her base offense level was increased by 14 points. U.S.S.G.
§ 2B1.1(b)(1)(H). She received a three-level adjustment for accep-
UNITED STATES v. KALILI 3
tance of responsibility, and because she had no prior criminal history,
her adjusted base offense level was 17.
At sentencing, the district court identified alternative grounds for
a downward departure—aberrant behavior and a finding that the
offense level of 17 substantially overstated the seriousness of the
crime. U.S.S.G. §§ 5K2.20; 2B1.1, App. Note 18(C). The court set
Kalili’s offense level at 12, and sentenced her to ten months in prison.
Without the downward departure, Kalili’s sentencing range would
have been from 24 to 30 months.
II.
The Prosecutorial Remedies and Tools against the Exploitation of
Children Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650,
(PROTECT Act), changed the standard of review we employ in
reviewing a district court’s decision to depart. Before the PROTECT
Act, a district court’s decision to depart was reviewed for abuse of
discretion. Koon v. United States, 518 U.S. 81, 96-100 (1996). Under
the PROTECT Act, 18 U.S.C. §§ 3742(e)(3) and (4) (as amended
April 30, 2003), if the sentence falls outside the guidelines’ range, we
review de novo the district court’s application of the Guidelines to the
facts to decide whether the departure is based on a factor that (1)
advances the objectives of federal sentencing policy, (2) is authorized
under 18 U.S.C. § 3553(b), and (3) is justified by the facts of the case.
United States v. Pressley, 345 F.3d 1205, 1209 n.1 (11th Cir. 2003).1
See also United States v. May, 359 F.3d 683, 687-88 (4th Cir. 2004)
(holding that we review the district court’s factual determinations and
the ultimate decision to depart downward de novo); United States v.
Stockton, 349 F.3d 755, 764 (4th Cir. 2003) (same), cert. denied, 124
S. Ct. 1695 (2004).
1
The PROTECT Act also requires a court of appeals to set aside a sen-
tence if the district court failed to provide a written statement of the rea-
sons for its departure. 18 U.S.C. § 3742(e)(3)(A), (f)(2)(B). Here, the
record on appeal does not contain such a statement. However, because
the parties have not raised the issue and because we review de novo the
application of the Guidelines to the facts even when the court fails to
provide a written statement of reasons, we will assess whether the depar-
ture was justified by the facts of the case. United States v. May, 359 F.3d
683, 688 n.5 (4th Cir. 2004).
4 UNITED STATES v. KALILI
Reviewing de novo, we find that the district court did not err in
departing downward. As indicated, the district court departed down-
ward on two alternative bases. The departure for aberrant behavior is
a close call. To qualify as "aberrant behavior," the offense must be a
single criminal occurrence or single criminal transaction of limited
duration, committed without significant planning, and must represent
a marked deviation from the defendant’s usual law-abiding behavior.
U.S.S.G. § 5K2.20(b).
Here, Kalili’s conduct arguably involved more than a single trans-
action and substantial planning. The "test" deposit was made several
days before the outrageously large deposit. Cf. United States v. Glick,
946 F.2d 335, 338 (4th Cir. 1991) (holding that five letters containing
misappropriated, confidential information over the course of ten
weeks was more than a single transaction).
Notwithstanding this concern, we find that the district court was on
more solid ground in departing downward because Kalili’s offense
level substantially overstated the seriousness of the offense. Kalili’s
offense level was increased by 14 points based on an "intended loss"
of between $400,000 and $1,000,000. U.S.S.G. § 2B1.1(b)(1)(H). If
the loss was calculated at less than $5,000, (the restitution loss to the
bank was $1135.28), the offense level would not have increased, and
would have settled at three after the acceptance-of-responsibility
adjustment.
The Guidelines do expressly provide for such a situation. See
U.S.S.G. § 2B1.1, App. Note 3(A) (defining "loss" as "the greater of
actual loss or intended loss," and defining "intended loss" as "the
pecuniary harm that was intended to result from the offense . . .
includ[ing] intended pecuniary harm that would have been impossible
or unlikely to occur."). However, Application Note 18(C) to U.S.S.G.
§ 2B1.1 also provides: "There may be cases in which the offense level
determined under this guideline substantially overstates the serious-
ness of the offense. In such cases, a downward departure may be war-
ranted."
We agree with the district court that this was one of those cases
contemplated by the Sentencing Commission. While Kalili’s offense
level was correctly increased to 17 based on an intended loss of over
UNITED STATES v. KALILI 5
$800,000, it is clear that this was not an $800,000 case. Not surpris-
ingly, Kalili did not significantly profit from her daughter’s ill-
conceived scheme before they were caught. She withdrew some cash
and also made a debit card purchase at Wal-Mart. At the time of sen-
tencing, she had made nearly full restitution. In light of the foregoing,
we find the district court did not err in departing downward in this
case. Cf. United States v. Corry, 206 F.3d 748, 751 (7th Cir. 2000)
(holding that loss overstating the seriousness of the offense is "an
encouraged basis for departure").
Kalili’s sentence advances the objectives of federal sentencing pol-
icy, is authorized by law, and is justified by the facts of the case.
AFFIRMED