United States Court of Appeals
For the Eighth Circuit
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No. 14-2218
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Melanie Lynn Bonine
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: February 9, 2015
Filed: February 19, 2015
[Unpublished]
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Before GRUENDER, SHEPHERD, and KELLY, Circuit Judges.
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PER CURIAM.
Melanie Bonine pleaded guilty to filing a materially false tax return, a violation
of 26 U.S.C. § 7206(1). After calculating an advisory sentencing guidelines range of
18 to 24 months’ imprisonment, the district court1 varied upward and sentenced
Bonine to 36 months in prison. The court concluded that this increased sentence was
warranted because the unreported income that led to Bonine’s false-tax-return
conviction was obtained through a fraud scheme in which Bonine participated.
Bonine appeals this sentence. We affirm.
From 2001 to 2011, Bonine worked for Bixby Energy Systems (“Bixby”),
earning about $105,000 per year. An investigation revealed that Bonine had failed to
report a total of $950,188.29 in income during 2006, 2009, and 2010, resulting in
$306,359 in outstanding federal taxes. All the unreported income was earned from
activities related to the sale of Bixby securities. In August 2013, Bonine pleaded
guilty to filing a materially false tax return. As part of the plea agreement, the
Government agreed not to charge Bonine with any other crimes known to it at the
time—including any charges related to “the fraud scheme involving Bixby Energy
Systems.” The parties stipulated to a guidelines range of 18 to 24 months’
imprisonment, and the agreement reserved the right of both parties to present “any and
all relevant evidence to the Court at sentencing.” At the time that Bonine and the
Government reached this plea agreement, the Government was pursuing criminal
charges against Robert Walker, Bonine’s father, for his role in the Bixby fraud
scheme. The same district court judge presided over both Walker’s criminal trial and
Bonine’s subsequent sentencing hearing. Walker ultimately was convicted of several
charges related to his role in the Bixby fraud scheme.
Before her sentencing hearing, Bonine requested a downward variance from the
advisory sentencing guidelines range due to her various medical conditions, strong
familial ties, clean criminal record, and admission of wrongdoing. In response, the
1
The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.
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Government requested an upward variance to 36 months, arguing that the evidence
from Walker’s trial showed that Bonine was involved in the Bixby fraud scheme.
At the sentencing hearing, the district court adopted the parties’ suggested
guidelines calculations. Bonine’s counsel addressed the evidence from Walker’s trial
explaining that “I would have been in a better position if I could have defended [Ms.
Bonine]” but “[the evidence is] something that is there, it cannot be ignored.”
Bonine’s attorney also acknowledged that Bonine’s tax evasion was intertwined with
the Bixby fraud scheme. After hearing from both sides, the district court imposed a
sentence of 36 months. The court found that “Bonine was part of this greater fraud
scheme for nearly 10 years, [e]nsuring that investors were lulled and repeatedly misled
. . . . In that context she sold [securities] she had obtained as part of the scheme and
this charge arises [out] of her failure to pay taxes on that income.”
On appeal, Bonine raises several challenges to the substantive reasonableness
of her sentence. “[W]e review the substantive reasonableness of [Bonine’s] sentence
‘under a deferential abuse-of-discretion standard.’” United States v. Robison,
759 F.3d 947, 950 (8th Cir. 2014) (quoting Gall v. United States, 552 U.S. 38, 41
(2007)). “A district court abuses its discretion and imposes an unreasonable sentence
when it fails to consider a relevant and significant factor, gives significant weight to
an irrelevant or improper factor, or considers the appropriate factors but commits a
clear error of judgment in weighing those factors.” Id. at 950-51 (quoting United
States v. Kreitinger, 576 F.3d 500, 503 (8th Cir. 2009)). This “narrow and
deferential” review means that only an “unusual case” will warrant a finding of
substantive unreasonableness. United States v. Shuler, 598 F.3d 444, 447 (8th Cir.
2010) (quoting United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en
banc)).
Bonine first argues that the district court improperly relied on evidence from
Walker’s trial in determining her sentence. We disagree. The plea agreement
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permitted both parties to present any relevant evidence at the sentencing hearing.
More importantly, it is a longstanding principle that “sentencing judges ‘exercise a
wide discretion’ in the types of evidence they may consider when imposing [a]
sentence.” Pepper v. United States, 562 U.S. 476, 131 S.Ct. 1229, 1235 (2011)
(quoting Williams v. New York, 337 U.S. 241, 246 (1949)). Congress codified this
principle in 18 U.S.C. § 3661, which provides that “[n]o limitation shall be placed on
the information” a sentencing court may consider “concerning the [defendant’s]
background, character, and conduct.” See Pepper, 562 U.S. at 1235. Accordingly,
our case law permits a sentencing judge to rely upon facts gleaned from a co-
defendant or co-conspirator’s trial over which the judge presided when determining
an appropriate sentence. See United States v. Fetlow, 21 F.3d 243, 250 (8th Cir. 1994)
(A sentencing judge “may consider, without rehearing, evidence introduced at the trial
of a co-defendant if that evidence is relevant” to a disputed issue). In Smith v. United
States, we explained that reliable evidence from a co-defendant’s trial that was
presided over by the sentencing judge could be considered by the judge when ruling
on a potential weapon enhancement—provided that the defendant was given notice
of the proposed enhancement “and an opportunity to rebut or explain the evidence to
be used against him.” 206 F.3d 812, 813 (8th Cir. 2000) (per curiam).
Here, Bonine received sufficient notice and an opportunity to be heard. More
than a month before the sentencing hearing, the Government submitted a sentencing
memorandum seeking an upward variance based on facts gleaned from the Walker
trial. Rather than attempting to rebut these factual assertions, Bonine noted that she
was at an “extreme disadvantage” because she was not a party to the Walker trial.
Later at the sentencing hearing, Bonine’s attorney chose not to address any evidence
from the Walker trial, stating instead that the evidence “cannot be ignored.” And
while Bonine was not charged as a co-conspirator or co-defendant of Walker, we think
this is a distinction without a difference in this case given that Bonine received
sufficient notice and an opportunity to be heard. The district court presided over
Walker’s trial and had authority to rely on the evidence from that trial to conclude that
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Bonine’s tax evasion was interwoven with her participation in the Bixby fraud
scheme. See 18 U.S.C. § 3661. Therefore, the district court did not abuse its
discretion by considering evidence adduced at Walker’s criminal trial.
In a similar vein, Bonine argues that the district court committed a clear error
of judgment by “relying heavily” on the testimony that Walker gave during his
criminal trial. See Robison, 759 F.3d at 950-51. “[A] district court has wide latitude
to weigh the [18 U.S.C.] § 3553(a) factors in each case and assign some factors greater
weight than others in determining an appropriate sentence.” United States v. Bridges,
569 F.3d 374, 379 (8th Cir. 2009). Here, the district court conducted a thorough
review of the § 3553(a) sentencing factors, including Bonine’s educational history,
employment history, medical conditions, family situation, and Bonine’s underlying
conduct. After this review, the court found that Bonine’s tax-evasion charge arose
from her failure to report income gained from the Bixby fraud scheme. Accordingly,
giving due deference to the district court’s decision that the § 3553(a) factors, on the
whole, justify Bonine’s sentence, we find no clear error of judgment. See Gall,
552 U.S. at 51.
We affirm.
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