United States v. Heidi Beyer , 544 F. App'x 507 ( 2013 )

Case: 13-50141 Document: 00512429156 Page: 1 Date Filed: 11/04/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-50141 November 4, 2013
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HEIDI BERYL BEYER,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:12-CR-253-2
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
Heidi Beryl Beyer pleaded guilty to one count of wire fraud. The district
court varied downward to a sentence of 72-months of imprisonment. Beyer
was also sentenced to serve a three-year term of supervised release and pay
restitution in the amount of $ 9,525,031.77, jointly and severally with her
codefendant. Beyer contends that the district court procedurally erred by
failing to calculate her guidelines range. She further asserts that the district
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-50141
court procedurally erred by failing to consider the need to avoid unwarranted
sentence disparities among the similarly situated defendants in fraud cases
that she identified in an attachment to her sentencing memorandum. See 18
U.S.C. § 3553(a)(6).
These specific procedural arguments were not raised by Beyer before the
district court. When a specific claim of procedural error raised on appeal was
not raised in the district court, this court’s review is for plain error only. See
United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). Thus, Beyer must
show an error that is clear or obvious and that affects her substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If she makes such a
showing, this court has the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
id.
The record refutes Beyer’s argument that the district court did not
calculate her guidelines sentence. The presentence report (PSR) detailed how
the probation officer made the guidelines sentence range calculations. Neither
Beyer nor the Government objected to the PSR, which the district court
expressly adopted at sentencing. Thus, the district court made the required
guidelines sentence range calculations, and Beyer’s argument is without merit.
See United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009). Further, the
sentencing transcript and the district court’s written order explaining Beyer’s
sentence indicate that the district court considered all of the § 3553(a) factors
when imposing Beyer’s 72-month sentence. Cf. United States v. Willingham,
497 F.3d 541, 545 (5th Cir. 2007). Accordingly, Beyer has failed to show that
the district court committed procedural error when imposing her below-
guidelines sentence. See Gall v. United States, 552 U.S. 38, 51 (2007); Puckett,
556 U.S. at 135.
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No. 13-50141
Beyer also argues that her 72-month sentence is substantively
unreasonable because the fraud guidelines are excessive and have been
criticized by judges and politicians. She further contends that her 72-month
sentence contradicts several of the § 3553(a) factors. We review the
substantive reasonableness of a sentence under a deferential abuse of
discretion standard. See Gall, 552 U.S. at 51.
The argument that Beyer’s below-guidelines sentence is unreasonable
because the fraud guidelines lack an empirical basis and result in excessive
sentences is without merit. See United States v. Miller, 665 F.3d 114, 121 (5th
Cir. 2011), cert. denied, 132 S. Ct. 2773 (2012). The district court concluded
that a downward variance to 72 months of imprisonment was “a reasonable
sentence” based on the § 3553(a) factors. Beyer essentially seeks to have her
sentence vacated based on a reweighing of the § 3553(a) factors by this court.
See Gall, 552 U.S. at 51. She has failed to show that her 72-month sentence is
unreasonable. See id.; United States v. Murray, 648 F.3d 251, 258 (5th Cir.
2011).
The district court ordered Beyer to pay restitution in the amount of
$9,525,031.77 pursuant to 18 U.S.C. § 3663A, also known as the Mandatory
Victim Restitution Act of 1996 (MVRA). See United States v. Maturin, 488 F.3d
657, 660 (5th Cir. 2007). On appeal, Beyer contends that the amount of
restitution ordered by the court is improper because it exceeds the total losses
related to her offense of conviction. Because Beyer did not object in the district
court to the restitution order, we review for plain error. See id. at 659-60.
Because a fraudulent scheme is an element of Beyer’s conviction, see 18
U.S.C. § 1343, the district court was entitled to include within its restitution
order all losses within the specific temporal scope of the indictment, i.e., from
April 2008 until October 2011. See United States v. Inman, 411 F.3d 591, 595
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(5th Cir. 2005); United States v. Stouffer, 986 F.2d 916, 928-29 (5th Cir. 1993).
The district court was also entitled to rely on information contained in the PSR
as to the amount of loss occurring during this time frame because Beyer offered
no evidence contesting the PSR and did not show that it was inaccurate or
unreliable. See United States v. Ford, 558 F.3d 371, 376-77 (5th Cir. 2009).
Accordingly, Beyer has failed to show that the district court plainly erred in
ordering her to pay restitution in the amount of $ 9,525,031.77 jointly and
severally liable with her codefendant. See Maturin, 488 F.3d at 659-60; 18
U.S.C. § 3664(h).
AFFIRMED.
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