FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 6, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-6250
(D.C. No. 5:17-CR-00105-R-1)
BIRDIE JO HOAKS, (W.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
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Defendant Birdie Jo Hoaks appeals her 60-month sentence for conspiracy
imposed by the United States District Court for the Western District of Oklahoma.
Her sole issue on appeal is whether the district court’s upward variance from the
unchallenged sentencing guideline range of 24 to 30 months was procedurally and
*
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
Following a spree of defrauding the Postal Service of almost $62,000 by
purchasing stamps with bad checks, Defendant pleaded guilty to conspiring with her
twin sister. See 18 U.S.C. § 371. The presentence investigation report (PSR)
suggested a guideline range of 24 to 30 months’ imprisonment. But it noted the
“seriousness and continuity” of Defendant’s criminal history—including 18
convictions, 13 of which did not count toward her PSR criminal-history points for
various reasons including their age— as a factor the sentencing court might consider
as a basis for either an upward departure or variance from the guideline range.
R., Vol. 2 at 36.
In deciding upon the sentence the district court considered the PSR,
Defendant’s sentencing memorandum, and Defendant’s statement at her sentencing
hearing in which she described the abuse she suffered as a child, her close relationship
with a son, and her admission of responsibility. At the hearing the court
acknowledged that Defendant “had a . . . very unfortunate childhood and society has
got to do better.” R., Vol. 3 at 14. And it asked questions about her relationship with
her son. But the court concluded:
[I]n considering the sentencing factors set forth in 18 U.S. Code 3553, I think
my primary goal right now, and responsibility, is to protect society.
Unfortunately, at least by my count, in the presentence report you have 18 prior
convictions, an additional 14 arrests. That’s – that’s the times that you have
gotten caught. With all this in mind, it’s my judgment that you need to be put
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away for as long as I can put you away so you won’t be doing this to other
people.
R., Vol. 3 at 14.
After imposing the sentence, the court completed a Statement of Reasons form
in which it checked boxes indicating it had exceeded the guideline range because of
the “nature and circumstances of the offense,” “the history and characteristics of the
defendant,” “to reflect the seriousness of the offense,” “to afford adequate deterrence
to criminal conduct,” and “to protect the public from further crimes of the defendant.”
R., Vol. 2 at 41-42.
Defendant’s only procedural challenge to her sentence is that the district court
did not adequately explain its upward variance of her sentence at the sentencing
hearing or in its Statement of Reasons. Ordinarily, we review the procedural
reasonableness of a sentence under an abuse-of-discretion standard. See United States
v. Sanchez-Leon, 764 F.3d 1248, 1262 (10th Cir. 2014). But because Defendant did
not object to the procedure below, we review only for plain error. See United States v.
Mendoza, 543 F.3d 1186, 1190 (10th Cir. 2008).1 Under that standard we reverse
only if the district court committed “(1) error, (2) that is plain, (3) which affects . . .
1
Defendant argues that she did not have the opportunity to object to the Statement of
Reasons because it was issued after the conclusion of her sentencing proceeding. But the
proper way to object to a defective Statement of Reasons is to file a motion to correct the
document. See Mendoza, 543 F.3d at 1195-96.
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substantial rights and (4) which seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.
We see no error, much less error that is plain, in the district court’s explanation
of its sentence at the sentencing hearing. The issue is why the court imposed a
sentence twice as severe as the upper end of the guideline sentencing range. The
explanation was clear and reasonable: Defendant had not shown the ability to
conform her behavior to the law, as established by a horrendous record of arrests and
convictions. The court noted that it had considered all the statutory factors. But none
could outweigh the threat to society.
As for Defendant’s challenge to the Statement of Reasons, she fails on the third
prong of plain-error review because she cannot show prejudice from any shortcoming
in this postsentencing document. See United States v. Ortiz-Lazaro, 884 F.3d 1259,
1264 (10th Cir. 2018) (“[W]e believe that the district court would have imposed the
same sentence had it filed a written statement of reasons form.” (internal quotation
marks omitted)).
Defendant’s substantive-reasonableness challenge is that the sentence is greater
than necessary to comply with the sentencing factors set forth in § 3553(a). We
review for abuse of discretion. See id. at 1265 (“A district court abuses its discretion
when it renders a judgment that is arbitrary, capricious, whimsical, or manifestly
unreasonable.”).
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The district court did not abuse its discretion. A five-year sentence for
Defendant’s offense, in light of her criminal history, was hardly whimsical. At some
point even sympathy for a defendant’s traumatic childhood cannot override the need
to protect society. And Defendant’s love for her son, which apparently had not
induced her, in the court’s words, to “get a job and take care of [him],” was not a
compelling basis for leniency. R., Vol. 3 at 13.
I. CONCLUSION
We AFFIRM the judgment below.
Entered for the Court
Harris L Hartz
Circuit Judge
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