United States v. Mildred Yancey , 56 F.3d 69 ( 1995 )

56 F.3d 69
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.

UNITED STATES of America, Appellee,
v.
Mildred YANCEY, Appellant.

No. 95-1444

United States Court of Appeals,
Eighth Circuit.

Submitted: May 18, 1995
Filed: May 26, 1995

Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.

PER CURIAM.

1

After Mildred Yancey pled guilty to one count of making a false statement in violation of 18 U.S.C. Sec. 1001 (1988), the District Court1 sentenced her to serve five months at the St. Francis House in Little Rock, Arkansas. Yancey appeals her sentence.

2

The government initially charged Yancey with two counts of making a false statement in violation of 18 U.S.C. Sec. 1001 and two counts of forgery in violation of 18 U.S.C. Sec. 510(a)(1) (1988) after discovering that she had signed multiple verification forms and negotiated United States Treasury checks issued to her grandparents, Arthur and Annie Brown, over a ten-year period after their deaths. Yancey's criminal acts resulted in total overpayments of $41,295.03 and $37,735.00 by the United States Railroad Retirement Board and the Social Security Administration, respectively.

3

Yancey argues that the District Court erred when it (1) increased Yancey's base offense level pursuant to U.S.S.G. Sec. 2F1.1(b)(2) (1994) after finding that Yancey engaged in more than minimal planning; and (2) denied Yancey's request for a downward departure based on her physical condition.

4

The District Court's finding that Yancey engaged in more than minimal planning is not clearly erroneous because this offense involved "repeated acts over a period of time" that were not "purely opportune." See U.S.S.G. Sec. 1B1.1, comment. (n. 1(f)). The District Court's discretionary refusal to depart downward is not reviewable on appeal. See United States v. Kessler, 48 F.3d 1064, 1065 (8th Cir. 1995).

5

For the foregoing reasons, the sentence imposed by the District Court is affirmed.

1

The Honorable Garnett T. Eisele, Senior United States District Judge for the Eastern District of Arkansas