United States v. Sharon Marie Wheeler ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3972
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Sharon Marie Wheeler, *
*
Appellant. *
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Submitted: September 14, 2004
Filed: June 21, 2005
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Before MORRIS SHEPPARD ARNOLD, BRIGHT, and FAGG, Circuit Judges.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
Sharon Wheeler pleaded guilty to two counts of bank fraud. See 18 U.S.C.
§ 1344. At her sentencing hearing, Ms. Wheeler and the government agreed that,
under the United States Sentencing Guidelines, the applicable sentencing range was
30 to 37 months. The district court1 sua sponte departed upward from that range and
imposed a sentence of 48 months. Ms. Wheeler appeals the upward departure.
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
Ms. Wheeler first argues that the district court violated 18 U.S.C. § 3553(c)(2)
by not identifying the facts upon which it relied in departing upward. In the district
court's written statement of reasons, however, it explained that the upward departure
was "based upon the damage caused by the instant offense to the financial security
of [a named corporation]." Although the district court did not set out in its statement
of reasons the facts from which it concluded that Ms. Wheeler's conduct imperiled the
finances of the corporation, § 3553(c)(2) does not require such detail. All it requires
is a statement of reasons sufficient to ensure adequate review of the departure, which
is satisfied here. Cf. United States v. Orchard, 332 F.3d 1133, 1141 n.7 (8th Cir.
2003).
Ms. Wheeler next asserts that the record contained insufficient evidence to
justify the upward departure. According to an application note of the sentencing
guideline that applies to her offense, "an upward departure may be warranted" when
"[t]he offense endangered the solvency or financial security of one or more victims."
U.S.S.G. § 2B1.1, comment. (n.15(A)(v)) (2002). The presentence investigation
report (PSR) states that "[t]he money embezzled by [Ms.] Wheeler was a substantial
loss to [the corporation] ... [and] adversely affected the company's viability,
profitability, and ability to staff the business." In fact, according to the same report,
during one year Ms. Wheeler "embezzled over one-third of the total funds" of the
corporation, following which the corporation "verged on bankruptcy," and its owners
"were forced to begin funneling personal finances into the company to keep it afloat."
Ms. Wheeler did not object to any of these statements in the PSR. The district court
therefore did not err in concluding that Ms. Wheeler's embezzlement endangered the
corporation's financial security and warranted an upward departure.
Ms. Wheeler also maintains that, rather than basing the upward departure on
the consequences of her embezzlement, the district court relied on her criminal
history, which already was taken into account by the guidelines calculation and thus
was not a permissible ground for an upward departure, see Williams v. United States,
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503 U.S. 193, 200 (1992). At the sentencing hearing, the district court did mention
Ms. Wheeler's past convictions for misconduct similar to the offense in this case, but
it did so only while explaining why it believed that a mental disease or condition from
which Ms. Wheeler claimed to suffer did not cause her to perpetrate her crime. Ms.
Wheeler's argument is therefore meritless.
Finally, Ms. Wheeler contends that the district court violated her sixth
amendment rights by departing upward. Because Ms. Wheeler challenges the
constitutionality of the upward departure for the first time on appeal, we review for
plain error. See United States v. Pirani, 406 F.3d 543, 548-50 (8th Cir. 2005) (en
banc). The district court sentenced Ms. Wheeler before the Supreme Court's decision
in United States v. Booker, 125 S. Ct. 738 (2005), and erred by not sentencing Ms.
Wheeler under the advisory-guidelines scheme set out in that case. Nevertheless, Ms.
Wheeler has not "demonstrated a reasonable probability that [she] would have
received a more favorable sentence with the Booker error eliminated." Pirani, 406
F.3d at 551. Indeed, the district court departed upward sua sponte. Ms. Wheeler is
therefore not entitled to relief. See id. at 550-54.
Affirmed.
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