United States v. Dawn Cooper ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-1149
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Dawn Marie Cooper
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: January 14, 2019
Filed: February 15, 2019
[Unpublished]
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Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Dawn Cooper pleaded guilty to providing false information to the Social
Security Administration in violation of 42 U.S.C. § 1383a(a)(2). The district court1
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The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
attributed $549,028.15 in total losses as a result of Cooper’s fraud scheme, resulting
in a 12-level increase to her base offense level. U.S.S.G. § 2B1.1(b)(1)(G). The
district court found a total offense level of 15, a criminal history category of III, and
an advisory sentencing guidelines range of 24 to 30 months. Cooper requested a
downward variance based on her substance abuse and mental and physical illnesses.
After considering the 18 U.S.C. § 3553(a) factors, the court declined to vary
downward, sentenced Cooper to 30 months’ imprisonment, and ordered her to pay
$29,531.50 in restitution.
On appeal, Cooper first argues that the district court clearly erred by
determining that the total losses attributable to her were $549,028.15 rather than
$156,884.30. “We review de novo the district court’s application of the guidelines
and review for clear error its underlying findings of fact.” United States v. Scott, 448
F.3d 1040, 1043 (8th Cir. 2006).
“A misapplication of the guidelines is harmless if the district court would have
imposed the same sentence had it not relied upon the invalid factor or factors.”
United States v. LaRoche, 700 F.3d 363, 365 (8th Cir. 2012) (internal quotation marks
omitted). Here, the district court noted that it would have imposed a 30-month
sentence whether or not it used “the figures the government advocated originally or
that the defense advocated.” It explained that a “30-month sentence reflects the
seriousness of the offense, promotes respect for the law, and is sufficient, but not
greater than necessary.” Thus, any error in the loss calculation is harmless.
Cooper next argues that the district court erred in denying her motion for
downward variance because her 30-month sentence is “greater than necessary when
considering the totality of circumstances.” We review the substantive reasonableness
of a sentence under the deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 40, 51 (2007). When considering whether a sentence is
substantively reasonable, we “take into account the totality of the circumstances,
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including the extent of any variance from the Guidelines range.” Id. at 51. “Our
review of the substantive reasonableness of a sentence is narrow and deferential, and
it is the unusual case when we reverse a district court sentence . . . as substantively
unreasonable.” United States v. Whitlow, 815 F.3d 430, 436 (8th Cir. 2016) (internal
quotation marks omitted). We may consider a sentence within the guidelines range,
like Cooper’s, to be presumptively reasonable. See Gall, 552 U.S. at 51. Here, the
district court carefully considered Cooper’s mental and physical illnesses and the
§ 3553(a) factors, and it sentenced Cooper at the high end of her guidelines range.
We see no basis for finding the sentence unreasonable and thus conclude that the
district court did not abuse its discretion.
We affirm.
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