United States v. Terrance Tucker

FILED
NOT FOR PUBLICATION DEC 22 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-50612

Plaintiff - Appellee, D.C. No. 2:08-cr-01404-R-1

v.
MEMORANDUM *
TERRANCE GEORGE TUCKER, AKA
Terry Tucker,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 09-50625

Plaintiff - Appellee, D.C. No. 2:08-cr-01404-R-2

v.

SONYA DELORES WODKE TUCKER,
AKA Cheri Tucker, AKA Sonya Tucker,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 10-50127

Plaintiff - Appellee, D.C. No. 2:08-cr-01404-R-1

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 v.

TERRANCE GEORGE TUCKER, AKA
Terry Tucker,

Defendant - Appellant.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding

Argued and Submitted November 18, 2011
Pasadena, California

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and MILLS, Senior
District Judge.**

Appellants, Terrance Tucker (Terrance) and Sonya Tucker (Sonya) pled

guilty to two counts of bank fraud in violation of 18 U.S.C. § 1344(2)(b).1 They

now assert that the district court did not rule on their objections as to the loss

amount, the district court did not adequately explain its reasoning, and that their

sentences are unreasonable. Sonya also challenges the district court’s denial of her

request for a continuance.

** The Honorable Richard Mills, Senior District Judge for the United
States District Court, Central District of Illinois, sitting by designation.
1
Terrance Tucker expressly waived any challenge to the restitution order
and agreed to dismissal of Appeal No. 10-50127.

2
 1. When determining monetary loss, the district court may utilize various

methods, which do not have to be precise. See United States v. Berger, 587 F.3d

1038, 1045 (9th Cir. 2009). The district court based its loss calculation on

“[p]resentence reports, all schedules and exhibits submitted by the parties, and the

arguments of government counsel at the time of the hearing . . .” The evidence

upon which the district court relied included financial spreadsheets detailing the

amount of loss. Because the district court may employ various methods to

determine monetary loss, its estimate of loss was not clearly erroneous. See

Berger, 587 F.3d at 1045.

2. The district court explained that it imposed the sentences because of

Terrance and Sonya’s roles in the crimes, their knowledge of the industry, and their

relationship with the victims. As the district court adequately explained its

straightforward sentences that were within (Terrance) and below (Sonya) the

Guidelines range, no procedural error occurred. See United States v. Ressam, 629

F.3d 793, 824 (9th Cir. 2010), as amended.

3. Relying on Kimbrough v. United States, 552 U.S. 85 (2007), Terrance

asserted for the first time on appeal that there was a lack of empirical evidence to

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support application of U.S.S.G. §2B1.1. Just because a crime falls within a

Kimbrough exception does not mean the district court must vary from the

Guidelines. See United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011).

Moreover, when the district court does not have a policy disagreement with the

Guidelines, it is not obligated to apply a variance. See id. Accordingly, no plain

error occurred. See United States v. Armstead, 552 F.3d 769, 776 (9th Cir. 2008),

as amended.

The district court is not required to list in detail the § 3553(a) factors it

considered. See Ressam, 629 F.3d at 826. As long as the record supports that the

sentence imposed is logical and consistent with the § 3553(a) factors, the sentence

is reasonable. See id. at 827-28. Terrance's sentence was at the low end of the

Guidelines range and Sonya's was below the Guidelines range. Both were

reasonable. See Ressam, 629 F.3d at 824 (explaining that a sentence within the

Guidelines range is usually reasonable).

4. The district court has discretion to deny a continuance. See United

States v. Kloehn, 620 F.3d 1122, 1127 (9th Cir. 2010). Because Sonya failed to

establish any prejudice that resulted from the denial, there was no abuse of the

court’s discretion. See id. at 1128.

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AFFIRMED.

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