United States v. Boulware

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
AMANDA BOULWARE, a/k/a Amanda
L. Manigault, a/k/a Amanda Lynn
Manigault, a/k/a Amanda  No. 09-5125
Manigault-Boulware, a/k/a
Amanda L. Boulware, a/k/a
Amanda Manigault, a/k/a Amanda
Boulware-Manigault,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(3:09-cr-00058-JFA-1)

Argued: April 8, 2010

Decided: May 11, 2010

Before TRAXLER, Chief Judge, and DUNCAN and
DAVIS, Circuit Judges.

Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Duncan and Judge Davis joined.
2 UNITED STATES v. BOULWARE
COUNSEL

ARGUED: John Herman Hare, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Columbia, South Carolina, for Appel-
lant. Robert Frank Daley, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appel-
lee. ON BRIEF: Kevin F. McDonald, Acting United States
Attorney, Anne Hunter Young, Assistant United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.

OPINION

TRAXLER, Chief Judge:

Amanda Boulware appeals her sentence for fraudulently
making a declaration under penalty of perjury in a bankruptcy
case, arguing that the district court used the wrong guideline
to calculate her advisory guideline range and that the court
inadequately explained its reasons for imposing a sentence
within that range. Finding no reversible error, we affirm.

I.

Since 1995, Boulware has filed for bankruptcy 16 times in
three different districts. On May 25, 2007, the U.S. Bank-
ruptcy Court for the Northern District of Georgia entered an
order dismissing Boulware’s Chapter 13 proceeding and bar-
ring her for five years from filing another bankruptcy case.
Boulware violated that order approximately three months later
when she filed a Chapter 13 bankruptcy petition in the District
of South Carolina. Although the petition required her to dis-
close, under penalty of perjury, all her previous bankruptcy
cases filed in the past eight years, Boulware failed to disclose
nine such cases that she had filed in the Northern District of
Georgia.
 UNITED STATES v. BOULWARE 3
Boulware was subsequently charged in a two-count indict-
ment in the District of South Carolina. Count One charged her
with knowingly and fraudulently making a false declaration,
certification, verification, and statement under penalty of per-
jury by failing to disclose nine prior bankruptcy filings she
had filed in the Northern District of Georgia within the past
eight years, in violation of 18 U.S.C.A. § 152(3) (West 2000).
Count Two charged her with willfully and knowingly dis-
obeying and resisting a lawful order of a court of the United
States, in violation of 18 U.S.C.A. § 401(3) (West Supp.
2009). Boulware pleaded guilty to Count One. The United
States Probation Office then prepared a presentence report
("PSR") applying U.S.S.G. § 2J1.3(a) for the conduct that the
indictment charged as violating 18 U.S.C.A. § 152(3). See
U.S. Sentencing Guidelines Manual § 2J1.3(a) (2008). Based
on a total offense level of 121 and a Category III Criminal
History, the PSR calculated the advisory guideline range to be
15 to 21 months’ imprisonment. Boulware objected to the
PSR, arguing that § 2B1.1, which covers offenses involving
fraud and deceit, should be applied instead of § 2J1.3, which
applies to offenses involving perjury and other related crimes.

At sentencing, the district court overruled Boulware’s
objection and adopted the PSR’s recommendations regarding
the applicable advisory guidelines range. The district court
then read a lengthy letter from Boulware and another letter
from her cousin. The cousin also made an oral statement in
which she stressed that Boulware owned a cosmetology
school, had started a non-profit organization for high school
students seeking a career in cosmetology and barbering, and
hoped to have her sickly mother move in with her soon.
Defense counsel added that Boulware supports two of her
children, aged 12 and 19. For all those reasons, defense coun-
sel requested a sentence of probation with home detention or,
alternatively, of imprisonment for one year and a day. The
1
Boulware received a two-point reduction for acceptance of responsibil-
ity. See U.S.S.G. § 3E1.1(a).
4 UNITED STATES v. BOULWARE
district court then asked to speak to the probation officer, fol-
lowing which defense counsel added that Boulware had been
on pretrial release since February 2009 and counsel was not
aware of any problems with that arrangement.

The district court then rejected defense counsel’s request,
stating the following:

In consideration of all the factors I’m required to
consider under Section 3553(a), I determined that a
sentence within the advisory guideline range is the
appropriate sentence in this case, however I will sen-
tence at the low end.

In doing so, I have taken into account all the fac-
tors required of me by Section 3553(a), including the
nature and characteristics of the defendant, the
nature and characteristics of the offense, the need to
promote deterrence, a specific deterrence and gen-
eral deterrence, and all the other factors required.
And having done that I’m convinced that a sentence
of 15 months, the low end of the advisory range, is
appropriate.

J.A. 55.

II.

Boulware first contends that the district court erred by
using U.S.S.G. § 2J1.3 rather than U.S.S.G. § 2B1.1 to set her
offense level. We disagree.

We review the district court’s selection of § 2J1.3 de novo.
See United States v. Davis, 202 F.3d 212, 218 (4th Cir. 2000).
The Guidelines require that a sentencing court "[d]etermine
the offense guideline section . . . applicable to the offense of
conviction (i.e., the offense conduct charged in the count of
the indictment or information of which the defendant was
 UNITED STATES v. BOULWARE 5
convicted)." U.S.S.G. § 1B1.2; see United States v. Lambert,
994 F.2d 1088, 1091 (4th Cir. 1993). The applicable guideline
generally is found in the Statutory Index to the Guidelines
(Appendix A). See U.S.S.G. § 1B1.2(a). When the offense of
conviction "appear[s] to fall under the express terms of more
than one guideline," the sentencing court must choose the
guideline that is "most applicable" by "compar[ing] the guide-
line texts with the charged misconduct, rather than the statute
(which may outlaw a variety of conduct implicating several
guidelines) or the actual conduct (which may include factors
not elements of the indicted offense)." Lambert, 994 F.2d at
1092 (emphasis and internal quotation marks omitted).

The Index lists three guidelines for 18 U.S.C.A. § 152:
§ 2B1.1, § 2B4.1, and § 2J1.3. The parties agree that § 2B4.1,
which covers commercial bribery, is not applicable here.
Thus, the question before us is which of the remaining two
guidelines is more applicable to the offense of conviction.
Section 2B1.1, one of the Chapter 2, Part B guidelines
addressing "basic economic offenses," covers, inter alia,
fraud and deceit. Section 2J1.3, one of the Chapter 2, Part J
guidelines addressing "offenses involving the administration
of justice," covers, inter alia, perjury.

Boulware maintains that her offense of conviction was
more akin to fraud than to perjury. She argues that she lied to
the bankruptcy court about her prior bankruptcy history "in a
misguided attempt to stay ahead of her creditors." Appellant’s
br. at 11. Boulware’s argument is unpersuasive, however,
because it does not focus on the "conduct charged in the count
of the indictment . . . of which the defendant was convicted."
U.S.S.G. § 1B1.2. The indictment did not characterize Boul-
ware’s failure to disclose the prior bankruptcies as being part
of a plan to avoid making payment to specific creditors.
Rather, the indictment focused on the fact that her nondisclo-
sure constituted a false declaration made to the bankruptcy
court under penalty of perjury. Thus, the gravamen of the
charge was that Boulware interfered with the bankruptcy
6 UNITED STATES v. BOULWARE
court’s administration of justice, not that she defrauded any
creditors.

Boulware argues that § 2B1.1 is the first guideline listed in
the Statutory Index for 18 U.S.C.A. § 152(3), and that
§ 2B1.1 would not have been listed had the Sentencing Com-
mission not expected it ever to be used in connection with 18
U.S.C.A. § 152(3). That argument clearly misses the mark,
however. Section 2B1.1 is listed in the Index for § 152 gener-
ally, not for § 152(3) specifically, and the Index lists the
guidelines in the order they appear in the manual, so the fact
that § 2B1.1 is listed first is immaterial. See U.S.S.G. Appen-
dix A. As for the argument that § 2B1.1 would not have been
listed if it were never appropriate to apply it to § 152(3)
offenses, the question before us is not whether § 2B1.1 would
ever be appropriate to use with § 152(3). Rather, we consider
whether it was appropriate to apply it based upon the offense
conduct charged in this case.

Boulware also emphasizes that § 2B1.1 contains a specific
offense characteristic directed toward "a misrepresentation or
other fraudulent action during the course of a bankruptcy pro-
ceeding," U.S.S.G. § 2B1.1(b)(8)(B), while § 2J1.3 contains
no comparable provision and there is no specific reference to
bankruptcy in its accompanying commentary. That observa-
tion is of little consequence. As both guideline sections are
listed in the Index, the district court was required to determine
which was the better fit considering the charged offense con-
duct. For the reasons already discussed, the district court was
on firm ground in determining that § 2J1.3 was the better
choice.

Finally, Boulware maintains that the text of § 2J1.3 and its
commentary demonstrate that it is "directed at witness perjury
and subornation of witness perjury and not false statements in
bankruptcy proceedings, even if made under penalty of per-
jury." Appellant’s br. at 12. We disagree. It is unclear to
which parts of the text and commentary Boulware is referring,
 UNITED STATES v. BOULWARE 7
but the applicable commentary states, without any limitation,
that § 2J1.3 "applies to perjury . . . generally prosecuted under
the referenced statutes," of which § 152 is one. U.S.S.G.
§ 2J1.3 cmt. background.

III.

Boulware next argues that the district court did not offer
sufficient reasons to show that it made an individual assess-
ment of the specific circumstances in her case in light of the
relevant factors under 18 U.S.C.A. § 3553(a) (West 2000 &
Supp. 2009) and the arguments presented. The government
concedes that the district court committed this procedural
error, see United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009) ("Regardless of whether the district court imposes an
above, below, or within-Guidelines sentence, it must place on
the record an ‘individualized assessment’ based on the partic-
ular facts of the case before it."), but nonetheless argues that
the error was harmless. We are, of course, not bound by the
government’s concession, see United States v. Rodriguez, 433
F.3d 411, 414 n.6 (4th Cir. 2006), but even assuming that the
court’s explanation was insufficient, we agree with the gov-
ernment’s assertion that any error was harmless.

Since the Supreme Court issued its Booker decision, the
Sentencing Guidelines are no longer mandatory but rather are
"effectively advisory." United States v. Booker, 543 U.S. 220,
245 (2005). When sentencing criminal defendants post-
Booker, district courts first must correctly calculate the defen-
dant’s sentencing range under the Sentencing Guidelines. See
Gall v. United States, 552 U.S. 38, 49 (2007). The court must
then allow the parties to argue for what they believe to be an
appropriate sentence and consider those arguments in light of
the factors set forth in 18 U.S.C.A. § 3553(a). See id. at 49-
50; United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir.
2008), cert. denied, 129 S. Ct. 1312 (2009). Sentencing courts
are statutorily required to state their reasons for imposing a
particular sentence. See 18 U.S.C.A. § 3553(c) (West Supp.
8 UNITED STATES v. BOULWARE
2009). Although a court need not necessarily issue a compre-
hensive, detailed opinion, the court’s explanation must none-
theless be sufficient "to satisfy the appellate court that [the
district court] has considered the parties’ arguments and has
a reasoned basis for exercising [its] own legal decisionmaking
authority." Rita v. United States, 551 U.S. 338, 356 (2007);
see also Gall, 552 U.S. at 50 ("After settling on the appropri-
ate sentence, [the district court] must adequately explain the
chosen sentence to allow for meaningful appellate review and
to promote the perception of fair sentencing."). District
courts’ sentencing discretion is "sizeable," Abu Ali, 528 F.3d
at 266, and our review on appeal is limited to determining
whether the sentence imposed is reasonable, see Gall, 552
U.S. at 51.

Our reasonableness review has procedural and substantive
components. The procedural component, the one at issue in
this case, obligates us to ensure that the district court

committed no significant procedural error, such as
failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as manda-
tory, failing to consider the § 3553(a) factors, select-
ing a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sen-
tence—including an explanation for any deviation
from the Guidelines range.

Id.

Here, as we have explained, the error alleged is that the dis-
trict court committed procedural error by failing to adequately
explain its decision not to impose a below-guidelines sen-
tence. We have held that arguments made under § 3553(a) for
a sentence different than the one that is eventually imposed
are sufficient to preserve claims that the district court erred in
not adequately explaining its rejection of the sentencing argu-
ments. See United States v. Lynn, 592 F.3d 572, 578-79 (4th
 UNITED STATES v. BOULWARE 9
Cir. 2010); United States v. Grier, 475 F.3d 556, 571 n.11 (3d
Cir. 2007) (en banc) ("An objection to [an inadequate expla-
nation] will be preserved if, during sentencing proceedings,
the defendant properly raised a meritorious factual or legal
issue relating to one or more of the factors enumerated in 18
U.S.C. § 3553(a)."). Because Boulware argued that the
§ 3553(a) factors warranted a below-guidelines sentence, the
issue is properly preserved, and we therefore apply harmless-
error review in considering whether Boulware’s alleged pro-
cedural error warrants reversal.2 See Lynn, 592 F.3d at 579.
Under that standard, the government may avoid reversal only
if it demonstrates that the error "did not have a substantial and
injurious effect or influence on the" result and "we can[] say
with . . . ‘fair assurance,’ . . . that the district court’s explicit
consideration of [the defendant’s] arguments would not have
affected the sentence imposed." Id. at 585 (quoting Kotteakos
v. United States, 328 U.S. 750, 765 (1946) (internal quotation
marks omitted)). We conclude that the government has satis-
fied that burden here.

That any error here would be harmless is best demonstrated
by comparison of this case to one of the consolidated cases in
Lynn. In that case, Lynn was convicted of possessing with
intent to distribute, and conspiring to distribute, over 100
grams of heroin. See 21 U.S.C.A. §§ 841(a), 846 (West 1999).
Lynn’s PSR, which the sentencing court adopted, classified
Lynn as a career offender, see U.S.S.G. § 4B1.1, and deter-
mined his Guidelines range to be 360 months’ to life impris-
onment. At sentencing, Lynn requested a below-guidelines
sentence for several reasons:

He contended that he fell "at the very margins of
2
We note that some courts have held that there can be no harmless-error
review when a district court fails to sufficiently explain its sentence. See,
e.g., In re Sealed Case, 527 F.3d 188, 193 (D.C. Cir. 2008). We have
rejected that approach, however. See United States v. Lynn, 592 F.3d 572,
580 n.5 (4th Cir. 2010).
10 UNITED STATES v. BOULWARE
career offender status" because "the greatest sen-
tence that he ha[d] served prior to the imposition of
this sentence [wa]s two and a half years." He pro-
tested that the evidence demonstrated that he was not
a "drug kingpin" but only a "courier" "for the benefit
of another." He maintained that the evidence showed
that he had been paid just $1000 for the charged
crime. He also asserted that a lengthy sentence
would not achieve "specific deterrence" or "protect-
[ion of] the public," and that to impose a within-
Guidelines career-offender sentence on him would
create unwarranted sentencing disparities, given the
substantial difference between state sentences and
career-offender federal sentences.

Lynn, 592 F.3d at 583 (alterations in original). The court then
sentenced Lynn to a within-guidelines sentence of 33 years,
commenting only that that sentence was "fair and appropriate
and . . . consistent with the requirements of" § 3553(a). Id.
(internal quotation marks omitted). Subsequently, just prior to
recessing, the court stated that he hoped Lynn would never
commit any more crimes. See id. The court also added that it
"never imposed a sentence on anyone . . . other than in the
public’s best interest" and mentioned that Lynn had an exten-
sive criminal history and that "they finally caught up with
him." Id. (alteration omitted).

On appeal to us, Lynn argued that the district court had
failed to sufficiently explain its sentence. We concluded that
Lynn had properly preserved that objection. See id. at 583-84.
We further held that the court’s sentencing explanation was
insufficient. See id. at 584-85. In that regard, we noted that
the district court had not offered any individualized assess-
ment justifying the sentence imposed and rejection of argu-
ments for a different sentence. See id. at 584. We also noted
that the record did not clearly show that the district court con-
sidered the defendant’s evidence and arguments in determin-
ing its sentence. See id. We then turned to the question of
 UNITED STATES v. BOULWARE 11
harmlessness, which we concluded "present[ed] a close ques-
tion." Id. at 585. We determined, however, that the govern-
ment failed to prove harmlessness because "[g]iven the
strength of Lynn’s arguments for a different sentence, we
[could not] say with any fair assurance that the district court’s
explicit consideration of those arguments would not have
affected the sentence imposed." Id.

The government’s argument for harmless error in the pres-
ent case is significantly stronger than its argument in Lynn for
two reasons. First, even assuming that the district court com-
mitted procedural error in failing to explain its rejection of
Boulware’s argument for a below-guidelines sentence, the
record in this case leaves us with no doubt that the district
court considered her argument in the context of applying the
§ 3553(a) factors. The district court specifically noted on the
record that it had read Boulware’s letter and that of her cou-
sin. The court then listened to the parties’ statements and
arguments before seeking assistance from the probation offi-
cer. Finally, the court stated that it had arrived at the 15-
month sentence by considering all of the § 3553(a) factors and
emphasized the need for specific and general deterrence.
Thus, even if the district court erred by not adequately
explaining its reasons for rejecting Boulware’s argument for
a below-guidelines sentence, we are quite confident that the
district court undertook that analysis and considered Boul-
ware’s argument. Cf. Rita, 551 U.S. at 358 (concluding that
when record showed that district court considered defendant’s
request for a below-guidelines sentence based upon special
circumstances that in fact were not particularly special and
then imposed a within-guidelines sentence while explaining
only that the sentence was "appropriate," the district court
"must have believed that there was not much more to say");
United States v. Battle, 499 F.3d 315, 324 (4th Cir. 2007)
(similar).

Second, unlike the sentencing arguments presented by the
defendant in Lynn, the arguments that Boulware made for a
12 UNITED STATES v. BOULWARE
below-guidelines sentence were very weak. Her abuse of the
bankruptcy process, culminating in her offense conduct, in
which she misrepresented the number of her serial bankrupt-
cies, was extensive. And, her argument for a below-guidelines
sentence amounted only to her claim that imprisoning her
would negatively impact several other people. But certainly
that state of affairs is not atypical for a defendant, and Boul-
ware produced no evidence that the effects on others from her
imprisonment would be unusually severe. For example, there
was no evidence that in her absence there would be no one
else available to support her children—one of whom was in
college—or care for her mother. Nor was there any evidence
presented that the effect on her students would be particularly
damaging.

In light of the strong indications that the district court fully
considered Boulware’s argument for a below-guidelines sen-
tence, and in light of the weakness of that argument, the
notion that having to explain its analysis further might have
changed the district court’s mind—even if realistic in
Lynn—is simply unrealistic in the present case, and remand
for resentencing would be a pointless waste of resources. We
therefore hold that even assuming that the district court com-
mitted procedural error in failing to sufficiently explain the
sentence imposed in light of the § 3553(a) factors, any error
was harmless. Cf. Neder v. United States, 527 U.S. 1, 18
(1999) ("Reversal for error, regardless of its effect on the
judgment, encourages litigants to abuse the judicial process
and bestirs the public to ridicule it." (internal quotation marks
omitted)).

IV.

For the foregoing reasons, Boulware’s sentence is affirmed.

AFFIRMED