United States v. Michelle Berry-Ortemond , 713 F. App'x 247 ( 2017 )

Case: 16-31042 Document: 00514208018 Page: 1 Date Filed: 10/24/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-31042 FILED
October 24, 2017
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
MICHELLE LEANN BERRY-ORTEMOND,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:15-CR-191
Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
In challenging her sentence of 24 months’ imprisonment and three years’
supervised release, Michelle Leann Berry-Ortemond contests the
reasonableness of the term of imprisonment, and the imposition of a special
condition to “participate in mental-health treatment . . . as directed by
Probation”. AFFIRMED.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
Case: 16-31042 Document: 00514208018 Page: 2 Date Filed: 10/24/2017
No. 16-31042
I.
Between June 2010 and April 2011, Berry-Ortemond exploited her
bookkeeping position at The BellTech Group, Inc., to forge checks, make
fraudulent wire transfers, and access unauthorized lines of credit, defrauding
the corporation and its owner, Michael Bellard, of $61,696.41.
In attempting to avoid detection, Berry-Ortemond redirected, hid, and
destroyed bank statements, credit-card bills, and late-payment notices. This
included, inter alia, Bellard’s health-insurance premium-payments and
related late-payment notices. Consequentially, Bellard’s health insurance was
terminated, endangering his insulin-dependent children. Upon discovery of
delinquent premiums, Bellard paid them in order to reinstate the lapsed policy.
Berry-Ortemond was indicted on ten counts of wire fraud and two counts
of illegal transactions with an access device, in violation of 18 U.S.C. §§ 1343
and 1029(a)(5). She pleaded guilty to one count of wire fraud; the remaining
counts were dismissed.
At her sentencing hearing, as discussed more fully infra, Berry-
Ortemond made in-court statements disputing, inter alia, Bellard’s statements
that she caused his health insurance to lapse. She stated that she neither
removed his insurance-premium payments, nor canceled the policy. The court
found her statement dishonest, and determined she was responsible for
Bellard’s health-insurance policy’s being terminated.
The court imposed a sentence of 24 months’ imprisonment (above the
Sentencing Guidelines advisory sentencing range of 8–14 months) and three-
years’ supervised release, including the earlier-quoted special condition
requiring Berry-Ortemond to “participate in mental-health treatment . . . as
directed by Probation”. In response, Berry-Ortemond objected only to the
reasonableness of her 24-month sentence.
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II.
Berry-Ortemond claims: 24 months’ imprisonment is substantively
unreasonable in the light of the 18 U.S.C. § 3553(a) sentencing factors; and the
court committed reversible plain error by mandating “participat[ion] in
mental-health treatment . . . as directed by Probation”. As discussed infra, the
first issue is reviewed for abuse of discretion; the second, only for plain error.
Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
A.
Berry-Ortemond maintains her 24-month sentence is an unreasonable
upward variance from the advisory Guidelines sentencing range of 8–14
months. The substantive reasonableness of an above-Guidelines sentence is
reviewed under an abuse-of-discretion standard in the light of the 18 U.S.C.
§ 3553(a) sentencing factors, including both the court’s decision to deviate
upwardly from the Guidelines range, and the extent of the deviation. E.g.,
United States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005); United States v.
Ceballos-Amaya, 470 F. App’x 254, 261 (5th Cir. 2012).
For obvious reasons, district courts generally enjoy substantial latitude
to evaluate the facts and circumstances of each case. Wheat v. United States,
486 U.S. 153 (1988). As noted, for issues preserved in district court, its findings
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of fact, during sentencing, are accepted unless “clearly erroneous”; and, “due
deference” is given the court’s balancing of mitigating and aggravating factors.
United States v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996)(citing United States v.
Otero, 868 F.2d 1412, 1414 (5th Cir. 1989)). “A factual finding is not clearly
erroneous as long as it is plausible in the light of the record read as a whole.”
United States v. Cluck, 143 F.3d 174, 180 (5th Cir. 1998)(citing United States
v. Krenning, 93 F.3d 1257, 1269 (5th Cir. 1996)).
There were two sentencing hearings. At the first, Berry-Ortemond
refuted, inter alia, culpability for Bellard’s health-insurance policy’s being
terminated. In that regard, she stated to the court: “I never took insurance
payments out of the mail and I would never cancel someone’s life insurance. I
have a daughter myself, and I would never put anyone’s child in that position”.
Denoting this issue “very important”, the court adjourned the hearing in order
to allow for further investigation.
Prior to the second hearing, the Government provided evidence of Berry-
Ortemond’s actions to conceal her fraud through holding and delaying Bellard’s
insurance-premium payments. The court considered Berry-Ortemond’s prior
protestations deceitful in the light of this newly acquired evidence.
Throughout the second sentencing hearing, Berry-Ortemond maintained she
had not lied to the court because she did not “call[] [Bellard’s] life insurance
[company] and affirmatively [take] some action to cancel anything”, although
she admitted she failed to pay premiums.
In sentencing Berry-Ortemond, the court, in determining the offense
warranted an above-Guidelines-range sentence, considered: her continued
denial of responsibility for the health-insurance policy’s being terminated; the
extreme abuse of the trust vested in her as bookkeeper; and her callousness in
disguising theft through redirecting payments. The court concluded the
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upward variance was appropriate, considering her culpability for the
terminated policy and her dishonesty and evasiveness.
Berry-Ortemond maintains the sentence is unreasonable because the
court did not properly consider mitigating factors, including her not having a
criminal record; position as a single mother supporting a 16-year-old daughter;
and pre-incarceration community-college attendance. Similarly, she
maintains the court excessively weighed aggravating factors: her removal of
insurance-premium payments, concealment of late-payment notices, the
resulting termination of Bellard’s health insurance, and her dishonesty
regarding these acts. And, she claims the court inappropriately considered her
statements dishonest, because, once Bellard discovered the theft, and promptly
paid the overdue premiums, the policy was reinstated. Additionally, she
contends that, if her actions resulted in the termination of Bellard’s health-
insurance policy, her concealment of the overdue notices, and failure to mail
premium payments was simply negligence. (Berry-Ortemond does not
challenge the court’s findings, but solely its balancing of this factor.)
Because the district court’s findings that Berry-Ortemond was dishonest
and culpable for Bellard’s insurance policy’s being terminated are not
implausible when considering the record as a whole, they are not clearly
erroneous. It follows that it was within the court’s discretion to reject Berry-
Ortemond’s statement the failure to pay the insurance premium was simply
negligence, and find her responsible for the termination of the health-
insurance policy.
Additionally, as noted, deference is given the court’s balancing of the
mitigating and aggravating factors. Therefore, it remained within its
discretion to give little weight to Berry-Ortemond’s mitigating factors, and
significant weight to, inter alia, the termination of the health-insurance policy
and dishonesty surrounding its termination.
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Last, the 71 percent upward deviation from the top of the Guidelines
sentencing range falls within the range of above-Guidelines sentences
previously approved by this court. United States v. Brantley, 537 F.3d 347,
348–50 (5th Cir. 2008); United States v. Williams, 517 F.3d 801, 811–12 (5th
Cir. 2008).
Accordingly, deference is appropriately given to the court’s sentencing
decisions based on the 18 U.S.C. § 3553(a) sentencing factors, and the decision
is not considered unreasonable solely based on a deviation from the Guidelines
range. Therefore, the court did not abuse its discretion in imposing the above-
Guidelines sentence.
B.
In claiming the court erred by imposing the condition to “participate in
mental health treatment and testing, inpatient or outpatient, as directed by
Probation”, Berry-Ortemond concedes she did not preserve this issue in district
court; as she also concedes, because there was no objection, as discussed supra,
review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537,
546 (5th Cir. 2012). Under that standard, Berry-Ortemond must show a
forfeited plain (clear or obvious) error that affected her substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If she does so, we have the
discretion to correct the reversible plain error, but generally should do so only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id.
“The imposition of a sentence, including the terms and conditions of
supervised release, is a core judicial function that cannot be delegated”; on the
other hand, the court may delegate to a probation officer decisions relating to
the details and implementation of a treatment program. United States v.
Franklin, 838 F.3d 564, 568 (5th Cir. 2016) (internal quotation marks omitted).
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In short, judicial authority is impermissibly delegated where probation officers
are given authority to determine whether treatment is required. Id.
Berry-Ortemond asserts “as directed by Probation” improperly compels
participation at the discretion of the probation officer, rendering it an
impermissible delegation of judicial authority. She relies on our court’s
Franklin opinion, holding the district court impermissibly delegated judicial
authority by requiring treatment “as deemed necessary and approved by the
probation officer”, to support her plain-error claim. Id. at 567. This
misconstrues Franklin’s holding; the special condition in Franklin was struck
down by reason of the ambiguity stemming from the term “as deemed
necessary and approved”. Id. at 566. Our court ruled the term was ambiguous
as to whether the special condition delegated to probation officers simply the
authority to implement the treatment, or the authority to both implement, and
determine the necessity of, treatment. Id.
Unlike the condition imposed in Franklin, the special condition imposed
for Berry-Ortemond makes no reference to the probation officer’s approval or
determination of necessity. Again, the special condition required
“participat[ion] in mental health treatment and testing, impatient or
outpatient, as directed by Probation”.
Conditions must be read in a “commonsense way”; the word “direction”
within “at the direction of Probation”, is to be interpreted by its common
meaning. United States v. Phipps, 319 F.3d 177, 193 (5th Cir. 2003). For
purposes of our narrow plain-error review, the common interpretation of
“direction” arguably demonstrates the court’s intention to require treatment,
as guided or instructed by probation. Black’s Law Dictionary (9th ed.
2009)(defining direct as “to move on a particular course”; “to guide”). Because
the commonsense reading of “direction” arguably shows the special condition
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delegated to probation officers solely the implementation of the required
treatment, it is not plain (clear or obvious) error.
Along that line, our court has not previously considered the
permissibility of supervised-release imposing a special condition of treatment
“as directed by Probation”; and, the above commonsense interpretation may be
considered valid under current precedent. Therefore, as discussed, error vel
non is subject to reasonable dispute. It follows, pursuant to our limited plain-
error standard of review, that, because there is—at a minimum—a reasonable
dispute for whether the special condition constituted an impermissible
delegation of judicial authority, Berry-Ortemond fails to demonstrate the
requisite clear or obvious error. Puckett, 556 U.S. at 135.
III.
For the foregoing reasons, the judgment is AFFIRMED.
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