United States v. Kimberlie Flemings ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4136
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIMBERLIE L. FLEMINGS,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:18-cr-00096-RJC-DSC-2)
Submitted: October 27, 2021 Decided: November 16, 2021
Before NIEMEYER, AGEE, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Noell P. Tin, TIN FULTON WALKER & OWEN, PLLC, Charlotte, North Carolina, for
Appellant. R. Andrew Murray, United States Attorney, Amy E. Ray, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a grand jury indicted Kimberlie L. Flemings and two coconspirators for
numerous counts of fraud, a jury found her guilty of one count of conspiracy to commit
wire fraud and bank fraud, in violation of 18 U.S.C. § 1349; one count of wire fraud
affecting financial institutions, in violation of 18 U.S.C. § 1343; and eight counts of
financial institution fraud, in violation of 18 U.S.C. § 1344(2). The district court sentenced
Flemings to concurrent 57-month terms of imprisonment, which were within the
Sentencing Guidelines range calculated by the district court. Flemings’ two coconspirators
pleaded guilty and received sentences of 18 and 15 months. On appeal, Flemings asserts
that her sentence is both procedurally ∗ and substantively unreasonable. We affirm.
“We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) using an
abuse-of-discretion standard, regardless of ‘whether [the sentence is] inside, just outside,
or significantly outside the Guidelines range.’” United States v. Nance, 957 F.3d 204, 212
(4th Cir.) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)), cert. denied, 141 S. Ct.
687 (2020). This court first considers “whether the district court committed any procedural
error, such as improperly calculating the Guidelines range, failing to consider the [18
U.S.C.] § 3553(a) factors, or failing to adequately explain the chosen sentence.” Id. “If
the Court finds no significant procedural error, it then considers the substantive
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Although the Government asserts that Flemings does not adequately set forth her
procedural unreasonableness argument and, therefore, has waived appellate review, this
court must review sentences for procedural reasonableness even when an appellant does
not raise the issue. United States v. Provance, 944 F.3d 213, 218 (4th Cir. 2019).
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reasonableness of the sentence imposed.” United States v. Arbaugh, 951 F.3d 167, 172
(4th Cir.) (brackets and internal quotation marks omitted), cert. denied, 141 S. Ct. 382(2020).
Flemings contends that her sentence is procedurally unreasonable because the
district court did not apply a mitigating role adjustment in light of the dearth of evidence
about Flemings’ exact pecuniary gain. See U.S. Sentencing Guidelines Manual § 3B1.2
(2018). The Government asserts that, because Flemings did not explicitly request a
§ 3B1.2 adjustment at sentencing, review should be for plain error. See United States v.
Lynn, 592 F.3d 572, 577 (4th Cir. 2010) (“[T]he rigorous plain-error standard applies to
unpreserved claims of procedural sentencing error.”). Under either the plain-error standard
or the abuse-of-discretion standard, Flemings is not entitled to relief.
A defendant should only receive a minor role adjustment when the defendant is
“substantially less culpable than the average participant in the criminal activity.” USSG
§ 3B1.2 cmt. n.3(C) (emphasis added) (discussing factors courts consider in determining
whether the totality of the circumstances supports the reduction). “[A] defendant who is
accountable under [USSG] § 1B1.3 for a loss amount under § 2B1.1 (Theft, Property
Destruction, and Fraud) that greatly exceeds the defendant’s personal gain from a fraud
offense or who had limited knowledge of the scope of the scheme may receive an
adjustment.” USSG § 3B1.2 cmt. n.3(A). Comparing Flemings’ and her coconspirators’
participation in the conspiracy, Flemings was not substantially less culpable than her
cohorts. Although it is clear from the record that proceeds were distributed to Flemings,
trial testimony from a Government expert witness and one of Flemings’ coconspirators
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could not establish the amount of proceeds Flemings received from the fraudulent loan
scheme. This lack of clarity does not entitle Flemings to a mitigating role adjustment. And
the district court otherwise properly calculated the Guidelines range and sufficiently
explained the sentence, so we conclude that Flemings’ sentence is procedurally reasonable.
“When considering the substantive reasonableness of a prison term, we examine the
totality of the circumstances to see whether the sentencing court abused its discretion in
concluding that the sentence it chose satisfied the standards set forth in § 3353(a).”
Arbaugh, 951 F.3d at 176 (brackets and internal quotation marks omitted); see also Gall,
552 U.S. at 59-60 (recognizing that appellate court must “give[] due deference to the
[d]istrict [c]ourt’s reasoned and reasonable decision that the § 3553(a) factors, on the
whole, justified the sentence”). This court presumes that a sentence within or below the
Guidelines range is substantively reasonable. United States v. Zelaya, 908 F.3d 920, 930
(4th Cir. 2018). A defendant can only rebut the presumption “by showing that the sentence
is unreasonable when measured against the . . . § 3553(a) factors.” United States v.
Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
Flemings contends that her sentence is substantively unreasonable because she
received an unreasonably disparate sentence when compared to her coconspirators’
sentences. See 18 U.S.C. § 3553(a)(6). But Flemings’ argument finds no support in our
precedent. Section 3553(a)(6) is not directed at disparate sentences between coconspirators
but at sentencing disparities nationwide. United States v. Pyles, 482 F.3d 282, 290 (4th
Cir. 2007) (“[T]he kind of disparity with which § 3553(a)(6) is concerned is an unjustified
difference across judges (or districts) rather than among defendants to a single case.”
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(internal quotation marks omitted)), vacated on other grounds, 552 U.S. 1089 (2008);
United States v. Withers, 100 F.3d 1142, 1149 (4th Cir. 1996) (“To base a defendant’s
sentence on a co-conspirator’s sentence is a short-sighted approach which ignores the
Guidelines’ attempt to eliminate unwarranted sentencing disparities nationwide.”).
Additionally, individuals who go to trial and individuals who plead guilty are not similarly
situated for sentencing purposes. United States v. Susi, 674 F.3d 278, 288 (4th Cir. 2012).
Flemings also claims that the district court’s decision to sentence her more harshly
than her coconspirators by imposing a within-Guidelines sentence was mainly motivated
by a desire to punish her for going to trial. We conclude that this claim is baseless. “A
defendant’s right to due process requires that there be no vindictiveness against [her] for
having chosen to exercise [her] constitutional right[] [to trial].” Id. at 286 (quoting United
States v. Perry, 335 F.3d 316, 323–24 (4th Cir. 2003)). In fashioning the chosen sentence,
the district court relied on facts tailored to the § 3553(a) factors and made no mention of
Flemings’ choice to go to trial, other than acknowledging that Flemings did not receive a
reduction for acceptance of responsibility like her coconspirators who pled guilty.
Flemings therefore has not overcome the presumption of reasonableness afforded within-
Guidelines sentences.
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
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