NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-4192
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UNITED STATES OF AMERICA
v.
MADELINE WRIGHT,
Appellant
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On Appeal from the United States District Court
For the District of New Jersey
(D.C. Criminal Action No. 2-10-cr-00320-001)
District Judge: Honorable Stanley R. Chesler
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Submitted Under Third Circuit LAR 34.1(a)
November 18, 2011
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Before: RENDELL, AMBRO, and NYGAARD, Circuit Judges
(Opinion filed: November 22, 2011 )
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OPINION
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AMBRO, Circuit Judge
Madeline Wright pled guilty to one count of wire fraud in May 2010. The District
Court for the District of New Jersey sentenced Wright in October of that year, and she
filed a timely notice of appeal. Subsequently, Wright’s attorney moved to withdraw as
counsel under Anders v. California, 386 U.S. 738 (1967), asserting that all potential
grounds for appeal are frivolous. Wright has filed pro se briefs in support of her appeal.
We grant her counsel’s Anders motion and affirm her sentence.
I.
As a bookkeeper, Wright embezzled over $2.4 million from her employer. The
money came through about 120 wire transfers spanning nearly a decade. To hide her
transactions, she created at least 1,875 false entries in her employer’s accounting system.
Untangling those entries has cost the employer $350,000.
Wright waived her right to an indictment by grand jury. Instead, prosecutors
issued an information charging her with one count of wire fraud in violation of 18 U.S.C.
§ 1343. Wright appeared before the District Court and, pursuant to a written plea
agreement, pled guilty to that charge. The Court conducted an adequate plea colloquy,
which Wright does not challenge.
After a separate sentencing hearing, the District Court sentenced Wright to 60
months of imprisonment, three years of supervised release, restitution in the amount of
$2,476,155, and a special assessment of $100.
II.
Our rules provide that “[w]here, upon review of the district court record, counsel
is persuaded that the appeal presents no issue of even arguable merit, counsel may file a
motion to withdraw and supporting brief pursuant to Anders.” 3d Cir. L.A.R. 109.2(a).
If we concur with counsel’s assessment, we “grant [the] Anders motion, and dispose of
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the appeal without appointing new counsel.” Id. Accordingly, our “inquiry is . . .
twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether
an independent review of the record presents any nonfrivolous issues.” United States v.
Youla, 241 F.3d 296, 300 (3d Cir. 2001).
In his Anders brief, Wright’s attorney identified three potential grounds for appeal:
(1) the District Court’s jurisdiction; (2) the validity of Wright’s guilty plea; and (3) the
reasonableness of Wright’s sentence. Our review of the record confirms counsel’s
assessment that there are no nonfrivolous issues for direct appeal.
First, we agree that the District Court had jurisdiction under 18 U.S.C. § 3231.
Second, we uphold the validity of Wright’s plea agreement. The District Court
conducted a thorough plea hearing complying with the standards set forth in Boykin v.
Alabama, 395 U.S. 238 (1969), and Federal Rule of Criminal Procedure 11. At her plea
hearing, Wright was advised of her rights and the consequences of pleading guilty. The
Court reviewed the wire fraud charge, the statutory maximum penalties, and Wright’s
waiver of her right to a grand jury indictment. It also complied with the specific colloquy
requirements set out in Federal Rule of Criminal Procedure 11(c), advising Wright of the
federal trial rights that she waived by pleading guilty.
Third, Wright’s sentence is procedurally and substantively reasonable. The
District Court properly conducted the sentencing hearing following the three-step process
that we outlined in United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). District
courts must calculate a defendant’s Sentencing Guidelines range, rule on any departure
motions, and sentence based on the relevant factors in 18 U.S.C. § 3553(a). In this case,
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the District Court properly calculated Wright’s Guidelines range of 51 to 63 months of
imprisonment and considered factors raised by the parties, including Wright’s personal
statements. There were no departure motions. In addition, the sentence itself was
substantively reasonable in light of the facts to which Wright pled guilty.
In her pro se brief, Wright raises four particular objections to her sentence: (1) the
application of the acceptance-of-responsibility reduction; (2) the application of the
sophisticated-means enhancement; (3) the application of the abuse-of-position-of-trust
enhancement; and (4) the District Court’s alleged failure to consider mitigating
circumstances in its 18 U.S.C. § 3553(a) analysis. Wright did not raise these objections
during sentencing, so we review her claims for plain error. See United States v. Berry,
553 F.3d 273, 279 (3d Cir. 2009). She must show an error, it must be obvious, and it
must affect a substantial right. Id. If all three conditions are met, we may then exercise
our discretion to alter the sentence, “but only if . . . the error seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Johnson v.
United States, 520 U.S. 461, 467 (1997)).
First, Wright received the three-point downward adjustment for acceptance of
responsibility that she seeks on appeal. Contrary to her assertion, the presentence report,
which the District Court adopted, provided the appropriate three-point adjustment, not
merely a two-point adjustment.
Second, the sophisticated-means enhancement was appropriate. The Guidelines
call for the enhancement when there is “especially complex or especially intricate offense
conduct pertaining to the execution or concealment of an offense.” U.S.S.G. § 2B1.1
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cmt. n.8(B). Here, Wright shuttled funds across various client accounts, on average
creating 13 false entries per transaction to hide her fraud. She changed her means as her
employer implemented new control rules, allowing her to continue her scheme for eight
and a half years. That the fraud required only the skills and software that she would
otherwise use in her job does not make it any less sophisticated. See, e.g., United States
v. Humber, 255 F.3d 1308, 1313-14 (11th Cir. 2001) (“Humber’s crime against the Bank
involved continuous acts of fraud over a seven year basis. . . . It took external auditors
eight months to unravel, and[] the record reflects that the full extent of the crime may
never be known.”).
Third, the District Court properly applied the abuse-of-position-of-trust
enhancement. Her position left her with enough discretion in reconciling accounts to
perpetrate this fraud. Such discretion is the hallmark of this enhancement. See U.S.S.G.
§ 3B1.3 cmt. n.1. That she was not supervising other employees is not dispositive.
Furthermore, the factors that guided our analysis in United States v. Thomas, 315 F.3d
190 (3d Cir. 2002), support the District Court’s conclusion. Wright’s “position allow[ed
her] to commit a difficult-to-detect wrong,” as shown by the investment of time and
money that it has taken to uncover it. Id. at 204. Her position gave her authority over the
accounts. Id. By the time she was caught, she had been promoted to Senior Quality
Control Analyst. Finally, Wright’s employer “did not monitor [her] closely and appeared
to rely on her judgment and integrity,” id., as she was able to embezzle money for almost
a decade without anyone noticing.
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Fourth, the District Court properly considered the applicable § 3553(a) factors.
For example, though Wright’s counsel insisted at sentencing that “my client has no
intention of arguing her past or her history or her life experience,” the Court addressed
those factors. Despite its own investigation, in concert with the Probation Department,
the Court could not corroborate Wright’s claims about her childhood. It also reviewed
character letters that she submitted, but the authors did not appear to know of the charges
to which Wright had pled guilty. Contrary to Wright’s suggestion, district courts are
under no obligation to interview the authors of such letters. Deterrence is an important
factor, see 18 U.S.C. § 3553(a)(2), and Wright’s age alone does not make it irrelevant. A
defendant in her late 40s may be less likely to commit violent crimes, but fraud is
different. Indeed, Wright had taken a job as a bookkeeper at another company, offering
her the opportunity to offend again. The District Court’s conclusions do not constitute
plain error.
* * * * *
Wright’s counsel adequately fulfilled the requirements of Anders. Because our
independent review of the record fails to reveal any nonfrivolous ground for direct
appeal, we grant counsel’s motion to withdraw and affirm Wright’s sentence. 1 In
addition, we certify that the issues presented lack legal merit and that counsel is not
1
Wright is hereby advised that should she wish to file before us a petition for rehearing,
an original and 14 copies of a petition for rehearing en banc must be filed within 14 days
of the entry of judgment, or, if that time has passed, she may promptly file a motion to
enlarge the time for such filing. Counsel shall timely send a copy of this order to Wright.
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required to file a petition for writ of certiorari with the Supreme Court. 3d Cir. L.A.R.
109.2(b).
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