United States v. Rittall

Not for Publication in West’s Federal Reporter

United States Court of Appeals
For the First Circuit

No. 15-2475

UNITED STATES OF AMERICA,

Appellee,

v.

JOANN C. RITTALL,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before
Lynch, Circuit Judge,
Souter, Associate Justice,*
and Baldock, Circuit Judge.**

Kerry A. Haberlin, with whom Rankin & Sultan was on brief,
for appellant.
Margaret McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on
brief, for appellee.

April 7, 2017

* The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

** Of the Tenth Circuit, sitting by designation.
 BALDOCK, Circuit Judge. Defendant Joann Rittall pleaded

guilty to two counts of filing false income tax returns and

using other people’s identities. Based on her history and

characteristics, the nature and circumstances of the offense,

and the need to obtain restitution for the victims, the district

court would have imposed a sentence at the high-end of the U.S.

Sentencing Guidelines range. But because of Rittall’s serious

medical issues, primarily her Anorexia Nervosa, the district

court instead imposed a sentence at the low-end of the

Guidelines, resulting in 63 months’ imprisonment on both counts

to be served concurrently. In this sentencing appeal, Rittall

complains that the sentence is both procedurally and

substantively unreasonable. After careful consideration, we

affirm the district court’s sentence on Count 2 but remand with

instructions to resentence on Count 1 consistent with the

statutory maximum of 60 months’ imprisonment.

I.
Beginning in 2005, Rittall acquired other people’s personal

identifiers, including their birth dates and social security

numbers, by offering to help them file tax returns and claims

for rent rebates under Maine’s Residents Property Tax and Refund

“Circuit Breaker” program. Between 2006 and 2012, Rittall

prepared and filed false federal and state income tax returns in

her own name and the names of at least 24 others, including her

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son, boyfriend, neighbors, and individuals she met through

Alcoholics Anonymous and drug treatment programs she attended.

The returns included false claims about income, dependents, and

the Earned Income Tax Credit. The claimed refunds totaled

$435,298, and the federal government and Maine paid out a

combined total of $238,961.85 from 2007 to 2010. The IRS paid

refunds into bank accounts Rittall designated and could access.

In August 2013, the government filed a two-count

Information against Rittall. Count 1 charged False Claims

Against the Government, in violation of 18 U.S.C. § 287, for

filing false federal income tax returns claiming refunds of more

than $200,000 from 2009 to 2012, subject to a statutory maximum

of five years’ imprisonment. Count 2 charged Identity Theft, in

violation of 18 U.S.C. § 1028(a)(7) and 1028(b)(1)(D), for using

the personal identifiers of 24 people without their permission

and obtaining a thing of value over $1,000, subject to a

statutory maximum of 15 years’ imprisonment. Rittall waived

indictment and pleaded guilty to the Information.

Rittall’s serious health problems caused delays in

sentencing. Rittall had developed Anorexia Nervosa when she was

14 years old and faced multiple serious medical conditions

likely stemming from her eating disorder, including tachycardia

(rapid heart rate), hyperthyroidism (overactive thyroid), and

hypokalemia (low potassium). She also has Von Hippel-Lindau

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disease, a genetic condition causing benign and malignant tumors

to develop throughout her body. The district court held seven

presentence conferences and delayed sentencing for over two

years after Rittall pleaded guilty, in an attempt to allow her

to seek medical help and stabilize her condition. But those

efforts were met with limited success and continued setbacks. A

feeding tube required attention after it migrated from her

stomach to her upper bowel; a wound associated with her

intravenous feed became infected and she suffered renal failure;

she had a mass in her throat that required additional testing;

and doctors continued to treat her rapid heart rate, abdominal

pain, and chronic kidney disease. At the seventh presentence

conference, the district court noted that two of Rittall’s

doctors suggested Rittall might be sabotaging her own health to

avoid incarceration, perhaps out of fear that the Bureau of

Prisons (“BOP”) could not adequately treat her host of medical

conditions.

At sentencing in November 2015, the district court adopted,

without objection, the Guidelines calculation recommended in the

Third Revised Presentence Investigation Report. Based on an

adjusted offense level of 20 and a criminal history category V,

Rittall’s Guidelines imprisonment range was 63 to 78 months.

The district court then heard testimony from the clinical

director at Federal Medical Center (FMC) Carswell in Fort Worth,

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Texas, who testified to the facility’s ability to treat

Rittall’s numerous medical conditions through inpatient and

outpatient care, including medical and mental health services.

The district court then heard arguments from the government and

Rittall’s attorney, as well as comments from Rittall, before

stating the sentence.

Focusing on the factors in 18 U.S.C. § 3553(a), the

district court explained that it determined Rittall’s sentence

based mainly on (1) the history and characteristics of the

defendant, (2) the nature and circumstances of the offense,

(3) the need to obtain restitution to the victims, and (4) the

need to provide the defendant with adequate medical care. As to

Rittall’s history and characteristics, the district court

outlined her abusive relationships, substance abuse problems,

mental health history, employment history, and criminal history.

It noted that her past crimes “reflect a very strong streak of

dishonesty.” Despite having spent a fair amount of time in

jail, she had not been deterred from committing additional

crimes. Next, as to the nature and circumstances of the

offense, the district court described Rittall’s scheme and how

she obtained the personal identifying information from people

she knew or met through Alcoholics Anonymous, falsified

information, obtained the money, and blamed the victims when

confronted with her scheme. The district court emphasized that

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the scope of the fraud was wide and substantial, involving over

25 victims and receipts of nearly a quarter of a million dollars

from 2007 to 2010. Thus, the district court next turned to the

need to obtain restitution for the victims, which included the

federal and state governments as well as the taxpayers whose

identities she fraudulently used. And it noted the unlikelihood

that Rittall would be able to pay anything in restitution. The

district court concluded that, “but for the defendant’s medical

condition, I would, without any hesitation whatsoever, impose a

high end of the guideline sentence on this defendant.”

The district court next addressed how Rittall’s physical

and mental conditions impacted her sentence. Although Rittall

had an “unusual set of medical conditions,” the district court

concluded those conditions were mostly treatable “with

medication or changes in diet or the defendant’s own

cooperation,” rendering them less serious and less influential

over the sentence. As to Rittall’s Anorexia Nervosa, the

district court concluded that Rittall “has deliberately

attempted to manipulate her sentence through her manipulation of

her physicians, and it’s unfortunately consistent with her track

record in life.” The district court mentioned a previous

negative experience it had with FMC Carswell regarding a

different defendant with Anorexia, but the court nonetheless

concluded that Rittall “does well when she is hospitalized” and

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that she “actually bears a greater risk of physical problems

when she’s left to her own devices.” The district court noted

that “there is sort of an irreducible risk of someone with her

condition being at Carswell, but I think the risk at Carswell is

no greater than the risk of her remaining [at home] in Augusta.”

The district court concluded that, if Rittall “did not have

the physical issues that she obviously does have, I would be

looking at a high-range sentence. However, because of her

physical problems, it strikes me that the correct sentence to

impose is a low-end-of-the-guideline sentence and that is the

sentence I will impose.” The district court sentenced Rittall

to a term of 63 months’ imprisonment on both Counts 1 and 2, to

run concurrently. Rittall appealed her sentence on both

procedural and substantive grounds.

II.
In sentencing appeals, “we first determine whether the

sentence imposed is procedurally reasonable and then determine

whether it is substantively reasonable.” United States v.

Clogston, 662 F.3d 588, 590 (1st Cir. 2011). Procedural errors

may consist of “failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately

explain the chosen sentence—including an explanation for any

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deviation from the Guidelines range.” Gall v. United States,

552 U.S. 38, 51 (2007). We generally review procedural

reasonableness for abuse of discretion, with subsidiary

questions of law reviewed de novo and of fact for clear error.

United States v. Carrasco-de-Jesús, 589 F.3d 22, 27 (1st Cir.

2009). When a defendant does not object to an alleged

procedural error below, as is true here, we review for plain

error, in which case a defendant must show (1) that an error

occurred; (2) the error was clear or obvious; (3) the error

affected the defendant’s substantial rights; and (4) the error

seriously impaired the fairness, integrity, or public reputation

of the judicial proceedings. United States v. Duarte, 246 F.3d

56, 60 (1st Cir. 2001).

We review the substantive reasonableness of a sentence for

abuse of discretion, taking into consideration the totality of

the circumstances. United States v. Stone, 575 F.3d 83, 94 (1st

Cir. 2009). Under the abuse-of-discretion standard, we will

affirm unless the sentence falls outside the range of reasonable

sentences. Id. We focus on whether the district court

articulated a “plausible rationale” en route to a “defensible

result,” United States v. Martin, 520 F.3d 87, 96 (1st Cir.

2008), and give due deference “to the District Court’s reasoned

and reasonable decision that the § 3553(a) factors, on the

whole, justified the sentence.” Gall, 552 U.S. at 59–60.

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Because Rittall did not object below, the parties acknowledge an

open question in this Circuit as to whether a defendant must

object to the substantive reasonableness of a sentence to avoid

plain error review. See United States v. Ruiz-Huertas, 792 F.3d

223, 228 (1st Cir. 2015) (noting that the applicable standard of

review “is somewhat blurred,” but not deciding whether a

defendant must “preserve a claim that the duration of a sentence

is substantively unreasonable”).

A.

Rittall’s first complaint is that the district court

committed plain procedural error by relying on her need for

rehabilitation in imposing a prison sentence. The Sentencing

Reform Act instructs sentencing courts to “recogniz[e] that

imprisonment is not an appropriate means of promoting correction

and rehabilitation.” 18 U.S.C. § 3582(a). Sentencing courts

thus “may not impose or lengthen a prison sentence to enable an

offender to complete a treatment program or otherwise to promote

rehabilitation.” Tapia v. United States, 564 U.S. 319, 335

(2011). But a sentencing court does not err by discussing with

the defendant “the opportunities for rehabilitation within

prison or the benefits of specific treatment or training

programs.” Id. at 334. The “dividing line” between permissible

and impermissible references to rehabilitative needs centers on

whether the reference is “causally related to the length of the

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sentence or, conversely, was merely one of a mix of sentencing

consequences and opportunities.” United States v. Del Valle-

Rodriguez, 761 F.3d 171, 174 (1st Cir. 2014).

Rittall argues that the district court violated Tapia by

relying on her rehabilitative needs—specifically her medical

needs—to select the prison term. She points to the district

court’s discussion regarding how she

does well when she is hospitalized. She actually
bears a greater risk of physical problems when she’s
left to her own devices. So when she’s hospitalized,
she gains weight, and she is overseen, and she’s
controlled by other people, and she doesn’t have the
same risk that she has when she is out of the hospital
and has an incentive, at least in the run up to this
sentence, to manipulate the system.

Rittall argues an important factor in the district court’s

decision to impose a prison sentence was that she would do

better in prison than at home.

Even if we assume Rittall is correct that a district

court’s concerns for a defendant’s medical needs could result in

Tapia error, Rittall’s argument fails because she disregards the

context in which the district court made these comments. Before

turning to Rittall’s health concerns, the district court

explained that, “but for the defendant’s medical condition, I

would, without any hesitation whatsoever, impose a high end of

the guideline sentence” based on other circumstances of

Rittall’s “extremely serious” crime. The only issue putting

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downward pressure on the sentence was Rittall’s serious medical

issues and the BOP’s ability to treat her, but the district

court concluded that FMC Carswell could provide appropriate

care. The district court was not imposing a prison sentence or

basing the length of that sentence on the fact that Rittall

might do better with constant medical supervision; it imposed

the prison sentence because Rittall’s crime and history called

for the sentence and the district court was satisfied that she

would fare no worse in prison than at home. As in Del Valle-

Rodriguez, “the actual basis for the district court’s sentencing

determination is crystal clear”: Rittall’s serious crime and

extensive criminal history. 761 F.3d at 175. “There is no hint

of Tapia error.” Id. at 176.

Rittall’s supplemental authority of United States v.

Thornton, 846 F.3d 1110 (10th Cir. 2017), does not convince us

otherwise. In Thornton, the Tenth Circuit found that a district

court erred (but did not plainly err) when the district court

refused to vary downward or impose a lesser sentence based, in

part, on a need for rehabilitation. The district court had

commented that a lower sentence was not “in the defendant’s best

interest” as he “doesn’t do well on his own. Never has. And

he needs all kinds of services that he can get and will get in

prison.” Id. at 1113. The district court concluded, “I am

firmly convinced that defendant needs enough time in prison to

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get treatment and vocational benefits.” Id. at 1114–15. While

the Tenth Circuit determined the district court committed Tapia

error by refusing to sentence below the Guidelines, the same

cannot be said here. Instead, the district court refused to

sentence below the Guidelines because of Rittall’s serious

offense, not because she needed a sufficient amount of time in

prison to receive medical treatment and supervision. The

district court’s comments regarding how Rittall’s health fared

on her own versus while in inpatient care related to the

district court’s concern that the BOP might not be able to

address her many health concerns. Ultimately, the district

court was satisfied that the BOP could adequately treat Rittall

and thus imposed a prison sentence in line with its view of

Rittall’s serious criminal history and current crime. Rittall

fails on the first prong of plain error review because we see no

error here.

B.

Rittall next asserts the district court committed plain

procedural error by effectively treating the Guidelines as

mandatory rather than advisory when it refused to vary below the

Guidelines range based on her physical and mental conditions.

See Gall, 552 U.S. at 51 (stating that a district court commits

procedural error by treating the Guidelines as mandatory). She

acknowledges that the district court called the Guidelines

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“advisory,” but she points to the following discussion to

demonstrate the district court nonetheless treated the

Guidelines as mandatory when it came to imposing a prison

sentence or allowing for an at-home probationary sentence:

Here, the defendant, at least under the guidelines,
would not be entitled to a straight probationary
sentence, so in order to go outside the guideline,
it’s the courts view that it could not downward depart
under the guideline and award simply a straight
probationary sentence. The court has the obvious
authority under 3553(a) to impose any sentence that is
statutorily authorized, but to do so, it would be a
nonguideline sentence if it were straight probation.

Rittall does not assert the district court erred in

refusing to depart based on U.S.S.G. § 5H1.3, which allows for

departures based on the mental and emotional condition of the

defendant, or § 5H1.4, which allows for a departure based on the

physical condition of a defendant, but rather contends that the

district court erred in applying the same departure standard

while it was discussing the possibility of a variance. Under

the standards for departures under §§ 5H1.3 and 5H1.4, this

Court has recently reaffirmed that “[d]epartures based upon

health problems are discouraged and can only be justified if the

medical problems are present in unusual kind or degree.” United

States v. Herman, 848 F.3d 55, 59 (1st Cir. 2017) (quoting

United States v. LeBlanc, 24 F.3d 340, 348 (1st Cir. 1994)),

petition for cert. filed Feb. 14, 2017. To “be entitled to a

departure, a defendant must establish that her ‘life would be

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threatened or shortened by virtue of being incarcerated’ or that

‘the Bureau of Prisons would be unable to adequately accommodate

[her] medical needs.’” Id. (alteration in original) (quoting

LeBlanc, 24 F.3d at 349); see also United States v. Díaz-

Rodríguez, No. 15-1307, 2017 WL 1137016, at *5 (1st Cir. March

17, 2017) (affirming a district court’s refusal to depart when

the district court found the defendant would receive adequate

treatment while in custody). Rittall complains that the

district court held her to these same high standards while

considering whether to vary, which, in her view, shows the

district court treated the Guidelines as mandatory.

We do not read the record the same way Rittall does. Where

she sees the district court treating the Guidelines as

mandatory, we see the district court recognizing its authority

to vary under 18 U.S.C. § 3553(a) and simply refusing to do so.

The district court started with the “guideline sentence range of

63 to 78 months, which is advisory.” It then turned to the

factors set forth in 18 U.S.C. § 3553(a), including Rittall’s

serious health concerns. In our view, the essence of Rittall’s

complaint is that the district court “attached too little

weight” to her health concerns, but “deciding how much weight

should be given to particular factors in a specific case is,

within broad limits, the core functioning of a sentencing

court.” United States v. Maguire, 752 F.3d 1, 7 (1st Cir.

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2014). Rittall cannot seriously complain that the district

court did not carefully consider her health issues—those

problems took center stage in her seven pre-sentencing hearings

and at the sentencing hearing itself. And in the end, the

district court decided that her medical issues put downward

pressure on her sentence to the low end of the Guidelines, but

no lower. The district court was well within its discretion to

decide that the other 3553(a) factors—primarily the nature of

the crime, the history and characteristics of the defendant, the

need for restitution, and the need to afford adequate

deterrence—outweighed any downward pressure her unusual health

issues presented, particularly after finding that the BOP could

adequately treat her. The district court, aware that the

Guidelines were not mandatory, reasonably declined to vary below

them and did not commit plain procedural error, or, for that

matter, any error at all. See Maguire, 752 F.3d at 7

(“[D]iscretionary refusals to vary or depart are open to

reasonableness review in accordance with an abuse of discretion

standard.”).

C.

Rittall’s third point of error is that the district court

imposed a substantively unreasonable sentence when it refused to

vary downward from the Guidelines range. She asserts this is

“one of the rare cases in which a sentence imposed within the

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Guidelines range is substantively unreasonable” because (1) the

Guidelines range did not take into account her physical and

mental conditions, including her long battle with Anorexia

Nervosa and the host of other health problems she has faced;

(2) the amount of intended and actual loss, while not nominal,

was also not exorbitant and the Guidelines fully accounted for

that loss; (3) several of her previous convictions that placed

her in a category V criminal history were relatively minor, such

as operating an unregistered vehicle, operating with a suspended

license, and negotiating a worthless instrument and theft with

loss amounts of less than $7,000; and (4) she pleaded guilty to

the Information, saving the government from presenting the case

to a grand jury or a jury, yet the district court did not take

that into account and instead disqualified her from a reduction

because she stole less than $5 of melatonin while she was

released pending sentencing.

Because of an open question in this Circuit on the standard

of review, the parties disagree as to whether we review for

plain error or abuse of discretion, but as in Ruiz-Huertas,

“[w]e need not resolve this apparent anomaly today” because even

under the more favorable abuse of discretion standard, the

outcome is the same. 792 F.3d at 228. We discern no abuse of

discretion, let alone plain error. The district court carefully

considered and balanced a host of competing sentencing factors,

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and it explained its rationale on its way to reaching a

defensible result. The district court started with the advisory

guideline range of 63 to 78 months. It then outlined Rittall’s

history and characteristics, concluding that her prior

convictions “reflect a very strong streak of dishonesty” and

noting that jail has not deterred her from committing additional

crimes. Next, the district court turned to the nature and

circumstances of the offense and emphasized that Rittall’s

scheme was “quite elaborate,” involving over two dozen people

over six years. The district court also carefully considered

Rittall’s health concerns and concluded that, although serious,

the BOP could address those concerns at FMC Carswell. Finally,

the district court noted the victims’ reactions to Rittall’s

offense and the need to deter similar behavior. The district

court concluded that Rittall merited a significant term of

imprisonment, one that, but for her mental and physical issues,

would be at the high end of the Guidelines range. Because of

her health concerns, the district court imposed a sentence at

the low end of that range. This is a defensible result and

within the range of reasonable sentences. The district court

did not impose a substantively unreasonable sentence.

D.

Rittall’s final complaint is that the district court

imposed a sentence exceeding the statutory maximum on Count 1.

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The district court sentenced Rittall to 63 months’ imprisonment

on both Count 1 and Count 2, to run concurrently, even though

Count 1 had a statutory maximum of five years’ (60 months’)

imprisonment. Rittall did not object before the district court,

and thus, we review for plain error.

In United States v. Almonte-Nunez, 771 F.3d 84 (1st Cir.

2014), we faced an almost identical situation: the district

court sentenced the defendant to a 150-month concurrent sentence

on two counts that had been grouped together, despite the 120-

month statutory maximum on one of the counts. That error was

clear and obvious, as “Guideline calculations simply cannot

usurp a maximum level of imprisonment established by Congress.”

Id. at 92. Even though fixing the above-maximum sentence would

not affect the defendant’s ultimate sentence, we explained that,

“under normal circumstances, our discretion should be exercised

in favor of trimming back an excessive sentence.” Id.

To begin, in an appropriate case, leaving intact a
sentence that exceeds a congressionally mandated limit
may sully the public’s perception of the fairness of
the proceeding. That perception, in turn, may
threaten respect for the courts and may impair their
reputation. From the defendant’s standpoint,
collateral consequences may arise as a result of an
above-the-maximum sentence imposed on a particular
count. The existence and extent of these collateral
consequences are notoriously difficult to predict, but
they have the potential to harm the defendant in a
myriad of ways. It strikes us as both unwise and
unfair to place the risk of such harm on the defendant
where, as here, the excessive sentence is easy to
correct. In the last analysis, correcting such an

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 error will rarely tax judicial resources and may
(depending on what an uncertain future brings) provide
some small benefit to the defendant. When (as in this
case) there are no countervailing circumstances, we
believe that the interests of justice ordinarily will
tip the scales in favor of relief.

Id. (citations omitted).

Following the approach in Almonte-Nunez, we will remand for

the district court to enter a modified sentence in accordance

with the statutory maximum of 60 months’ imprisonment on Count

1.

III.

For the reasons stated above, we order the district court

to enter a modified sentence on Count 1 consistent with the

statutory maximum of 60 months’ imprisonment. We otherwise

affirm.

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