United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 2011 Decided December 27, 2011
No. 10-3097
UNITED STATES OF AMERICA,
APPELLEE
v.
LISA LOCKE, ALSO KNOWN AS LISA DAVIS-LOCKE, ALSO
KNOWN AS LISA DAVIS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00259-1)
Mary E. Davis, appointed by the court, argued the cause
for the appellant.
Leslie Ann Gerardo, Assistant United States Attorney,
argued the cause for the appellee. Ronald C. Machen, Jr.,
United States Attorney, and Roy W. McLeese III and Thomas
E. Zeno, Assistant United States Attorneys, were on brief.
Before: GINSBURG, HENDERSON and KAVANAUGH,
Circuit Judges.1
1
As of the date the opinion was published, Judge Ginsburg had
taken senior status.
2
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Lisa Locke
(Locke or Defendant) appeals her sentence of 60 months’
imprisonment resulting from her convictions of possession of
stolen mail and aggravated identity theft. Locke claims that
the district court erred when it “failed to consider” two
mitigating arguments she advanced. Appellant’s Br. at 11.
Because the record reflects that the district court in fact
considered both arguments and provided a “reasoned basis”
for Locke’s sentence, see Rita v. United States, 551 U.S. 338,
356 (2007), we affirm.
I.
Between January 2007 and April 2008, Locke
participated in a conspiracy to possess stolen mail and present
forged checks to banks and check-cashing stores throughout
the Washington, D.C. area. The fifteen-month conspiracy
caused an actual loss of more than $120,000 but had an
intended loss of more than $340,000. Locke was subsequently
charged with conspiracy, see 18 U.S.C. § 371, nine counts of
possession of stolen mail, see id. § 1708, three counts of
possession of a forged security, see id. § 513(a), seven counts
of bank fraud, see id. § 1344, and nineteen counts of
aggravated identity theft, see id. § 1028A(a)(1).
On April 27, 2010, Locke and the government entered
into a plea bargain. Locke agreed to plead guilty to one count
of possession of stolen mail and one count of aggravated
identity theft; the government agreed to dismiss all remaining
counts and not to seek a total sentence of more than 60
months’ imprisonment. The parties further stipulated to the
appropriate offense level under the United States Sentencing
Guidelines (U.S.S.G. or Guidelines) for the possession of
3
stolen mail charge.2 The government, however, reserved the
right to seek a four-level increase on the ground that Locke
was an “organizer or leader” of a conspiracy involving more
than five participants. See U.S.S.G. § 3B1.1(a). With this
four-level increase and with a criminal history category of III,
her Guidelines range was between 57 and 71 months,
consecutive to the mandatory minimum sentence of 24
months on the charge of aggravated identity theft.
In her sentencing memoranda and during the sentencing
hearing, Locke argued that a number of mitigating factors
warranted a below-Guidelines sentence. Locke asked the
court to consider her “desire to meet with prosecutors and
report on the crimes of other[] co[-] conspirators.” Def.’s
Mem. in Aid of Sentencing at 4, United States v. Locke, Cr.
No. 09-259-01 (D.D.C. Sept. 21, 2010) (Def.’s Mem.). She
also asserted that the intended loss calculation was almost
three times the actual loss and, thus, a Guidelines range based
on the intended loss, see U.S.S.G. § 2B1.1, overstated the
severity of the crime. Def.’s Mem. at 6. The government
countered that Locke was “the leader of a long running
conspiracy . . ., causing harm to more than 50 victims,”
Omnibus Sentencing Mem. at 6, United States v. Locke, Cr.
2
Specifically, the parties agreed that the base level for the
offense was six, see § 2B1.1(a)(2), with a twelve-level increase
because the intended loss exceeded $200,000, see § 2B1.1(b)(1),
and four additional levels because the crimes involved 50 or more
victims, see § 2B1.1(b)(2)(B). The parties further agreed to a two-
level decrease for acceptance of responsibility, see § 3E1.1(a), and
a one-level decrease for timely notice of intent to enter a plea, see §
3E1.1(b). Locke’s aggravated identity theft charge carried a
mandatory minimum sentence of 24 months to be served
consecutively. See 18 U.S.C. § 1028A(b)(2) (except as otherwise
provided, “no term of imprisonment imposed on a person under this
section shall run concurrently with any other term of imprisonment
imposed on the person under any other provision of law”).
4
No. 09-259-01 (D.D.C. Sept. 20, 2010), and that, although
Locke had agreed to provide information about her co-
conspirators, she had refused to provide information about her
son and her brother, both of whom had unrelated criminal
cases pending in D.C. Superior Court. Tr. of Sentencing at 45,
United States v. Locke, Cr. No. 09-259-01 (D.D.C. Dec. 10,
2010) (Sentencing Tr.) (“We know she knows a lot. She
didn’t want to talk about everything, so we didn’t want to hear
from her. That was her choice.”). In light of these factors, the
government recommended a sentence of 36 months on the
charge of possessing stolen mail as well as the mandatory
minimum sentence of 24 months, consecutive, on the charge
of aggravated identity theft, for a total sentence of 60 months.
At the sentencing hearing, the district court first
addressed the appropriate U.S.S.G. range for the possession of
stolen mail charge. After weighing the evidence regarding
Locke’s involvement in the conspiracy, the court concluded
that Locke “should get the four-level increase for her role . . .
as an organizer or leader of the conspiracy, which involves
more than five participants.” Id. at 21. Then the court turned
to Locke’s overall sentence on both charges. In announcing
the sentence, the district court did not explicitly address each
of Locke’s arguments for a below-Guidelines sentence. It did,
however, explain the basis for the sentence it imposed:
Now, let me focus on the offense here. It’s a very
serious, significant offense, with an impact on many,
many victims, and a result and an injury that strikes
at the heart of commercial and personal interests in
the community that are of fundamental importance,
particularly the personal interests, both monetarily,
but also in terms of privacy and identification
concerns. Over $120,000 of actual loss occurred, and
well over $300,000 was the intended or in some
instances some part of that attempted loss.
5
This was a fairly long-term conspiracy. It didn’t
take place over just a couple of days or a couple of
weeks. It extended over many months. It was well
planned. And that planning and execution included a
significant role by the [D]efendant.
And in some ways, . . . I don’t feel that the
[D]efendant has shown complete acceptance of
responsibility and remorse. She has for doing bad
things, but she hasn’t for what seems to me to be the
totality of the conduct she was engaged in.
* * *
When I consider all of the factors under 3553(a),
including appropriate punishment, deterrence both
with respect to Ms. [Locke] and others, protection of
the public and the community, and everything else
that is included in the assessment under 3553(a), I
conclude that the [D]efendant should receive a
substantial period of incarceration . . . .
Id. at 49-51. The court sentenced Locke to 60 months’
imprisonment: 36 months for possession of stolen mail and 24
months, consecutive, for aggravated identity theft. While
acknowledging that it was a “substantial period of
incarceration,” the court noted that the sentence was “well
below” the Guidelines recommendation of 24 months for
aggravated identity theft plus 57 to 71 months for possession
of stolen mail, “if you take even the low point of that
[G]uideline.” Id. at 51.
Locke now appeals her sentence, claiming that the district
court erred in “fail[ing] to consider” her unrequited efforts to
cooperate with the prosecution, Appellant’s Br. at 11, and her
claim that basing her sentence in part on intended, not actual,
loss, “substantially overstates the seriousness of the offense,”
id. at 13 (internal quotation marks omitted).
6
II.
In United States v. Booker, 543 U.S. 220 (2005), the
United States Supreme Court declared the Sentencing
Guidelines to be advisory only and instructed appellate courts
to review sentences for reasonableness in light of the factors
set forth in 18 U.S.C. § 3553(a). Id. at 244-45, 260-61. After
Booker, our review of sentencing challenges that have been
properly preserved is for abuse of discretion under a two-step
analysis. See Gall v. United States, 552 U.S. 38, 51 (2007). At
the first step, which is the only one at issue here, “we ensure
the district court ‘committed no significant procedural error,’
which includes ‘failing to adequately explain the chosen
sentence.’ ” United States v. Akhigbe, 642 F.3d 1078, 1085
(D.C. Cir. 2011) (quoting Gall, 552 U.S. at 51).3
The more demanding plain error standard of review
applies where a defendant fails to raise a claim at his
sentencing hearing or fails to object to a district court’s ruling.
See In re Sealed Case, 349 F.3d 685, 690–91 (D.C. Cir.
2003); United States v. Saro, 24 F.3d 283, 286 (D.C. Cir.
1994). Because Locke did not challenge the adequacy of the
district court’s statement of reasons below, we review her
claim for plain error. United States v. Anderson, 632 F.3d
1264, 1269 (D.C. Cir. 2011) (“Because he did not object to
the district court’s statements at the sentencing hearing, we
review [the defendant’s] sentencing-related claims for plain
3
At the second step, we review the overall reasonableness of the
sentence to ensure that it is objectively reasonable in light of the
sentencing factors in section 3553(a). United States v. Wilson, 605
F.3d 985, 1033-34 (D.C. Cir. 2010); United States v. Olivares, 473
F.3d 1224, 1226 (D.C. Cir. 2006). The factors in section 3553(a)
include the nature of the offense, the defendant’s history and the
need to promote deterrence, avoid unwarranted sentencing
disparities and provide restitution to any victims. See 18 U.S.C.
§ 3553(a).
7
error.”). To prevail under this standard, Locke must
demonstrate that the district court: (1) committed error; (2)
that is plain; and (3) that affects her substantial rights.
Johnson v. United States, 520 U.S. 461, 467 (1997). If all
three conditions are met, and if the error “seriously affect[s]
the fairness, integrity, or public reputation of judicial
proceedings,” id., an appellate court may then exercise its
discretion to notice a forfeited error.
Importantly, this is not a case in which the defendant was
given no opportunity to object to the district court’s
sentencing determination at sentencing. See FED. R. CRIM. P.
51(b) (“If a party does not have an opportunity to object to a
ruling or order, the absence of an objection does not later
prejudice that party.”); see also United States v. Mojica-
Rivera, 435 F.3d 28, 35 (1st Cir. 2006) (“As [the defendant]
had no opportunity to object to the conditions of supervised
release, our review is for abuse of discretion.”); United States
v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002) (reviewing
for abuse of discretion challenge to supervised release
imposed for first time in written judgment). In fact, the
sentencing judge gave Locke ample opportunity to object.
After explaining his reasoning, he asked the parties if they
“know of any reason other than reasons already stated and
argued why the sentence should not be imposed as I have just
indicated,” to which Locke’s lawyer replied “[n]othing else,
[y]our Honor.” Sentencing Tr. at 56.
We conclude that the district court committed no error,
much less plain error, in its statement of reasons for Locke’s
sentence. The Sentencing Reform Act of 1984, 18 U.S.C. §§
3551 et seq., requires the sentencing court “at the time of
sentencing” to “state in open court the reasons for its
imposition of [a] particular sentence.” Id. § 3553(c). This
provision requires that the court provide a “reasoned basis”
for its decision and consider all “nonfrivolous reasons”
8
asserted for an alternative sentence. Rita, 551 U.S. at 356-57.
“These requirements serve two primary purposes: they
develop an adequate record so that appellate courts can
perform substantive review, and they guarantee that
sentencing judges continue ‘to consider every convicted
person as an individual.’ ” In re Sealed Case, 527 F.3d 188,
191 (D.C. Cir. 2008) (quoting Gall, 552 U.S. at 52). That
said, section 3553(c) does not require “a full opinion in every
case.” Rita, 551 U.S. at 356. Nor does it require the court to
address expressly each and every argument advanced by the
defendant. See id. at 359 (although judge did not “explicitly
[state] that he had heard and considered the evidence and
argument [raised by defendant],” explanation was adequate).
In fact, so long as the judge provides a “reasoned basis for
exercising his own legal decisionmaking authority,” we
generally presume that he adequately considered the
arguments and will uphold the sentence if it is otherwise
reasonable. Rita, 551 U.S. at 356; United States v. Simpson,
430 F.3d 1177, 1186 (D.C. Cir. 2005) (“It is true that the
district court did not specifically refer to each factor listed in
§ 3553(a). But we have not required courts to do so.”
(emphasis in original)); United States v. Ayers, 428 F.3d 312,
315 (D.C. Cir. 2005) (“[W]e ordinarily presume a district
court imposing an alternative non-guidelines sentence took
into account all the factors listed in § 3553(a) and accorded
them the appropriate significance.”).
In this case, Locke has proffered nothing to rebut that
presumption. To the contrary, the record makes plain that the
district court carefully considered and evaluated both
arguments Locke claims it ignored. The court engaged in an
extended colloquy with Locke’s counsel regarding her
allegedly thwarted desire to cooperate with the government.
The court repeatedly asked Locke’s lawyer how the assertion
should be considered, Sentencing Tr. at 42 (“Then how
should I take it into account?”), and questioned whether
9
Locke was in fact alleging “some impropriety with respect to
the plea,” id. The court then confirmed that Locke was asking
for “a sentencing advantage” based on her “willing[ness] to
give information.” Id. at 43. It explicitly acknowledged
Locke’s second argument regarding the gap between the
actual and intended loss, noting that it was “[t]rue enough”
that the actual loss was only a third of the intended loss. Id. at
33. It discounted this point, however, on the basis that much
of the intended loss was attributable to “unsuccessful check[-]
cashing efforts” by Locke or her co-conspirators. Id. The
court reasserted this point in announcing Locke’s sentence.
See id. at 49 (“Over $120,000 of actual loss occurred, and
well over $300,000 was the intended or in some instances
some part of that attempted loss.” (emphasis added)).
Finally, the court provided a well-reasoned basis for its
decision. After outlining the seriousness of the offense, the
length of the conspiracy, the “significant role” played by
Locke and its doubts about her remorse, it concluded that a
“substantial period of incarceration” was warranted.
Sentencing Tr. at 48-52. The court’s discussion of its
reasoning, which spans more than three pages of the
transcript, more than satisfies its sentencing obligation. See In
re Sealed Case, 527 F.3d at 191 (“district judge need not
consider every § 3553(a) factor in every case”); United States
v. Wykle, 429 Fed. App’x. 205, 207 (4th Cir. 2011) (“While a
district court must consider the statutory factors and explain
its sentence, it need not explicitly reference § 3553(a) or
discuss every factor on the record.”).
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.