United States v. Wanda Battle

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12994 ELEVENTH CIRCUIT
December 10, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK

D. C. Docket No. 07-00230-CR-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WANDA BATTLE,
a.k.a. Wanda Polite,
Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(December 10, 2008)

Before TJOFLAT, ANDERSON and PRYOR, Circuit Judges.

PER CURIAM:
On May 12, 2008, the district court sentenced appellant on a plea of guilty

to a prison term of 40 months for loan application fraud, in violation of 18 U.S.C.

§§ 1014.1 The sentence was in the middle of the Guidelines sentence range of 37

to 46 months. Appellant now appeals her sentence, arguing that the district court

committed procedural error in arriving at the sentence range and that the sentence

is substantively unreasonable.

Procedural error may occur if the district court failed to calculate, or

improperly calculated, the Guidelines sentence range, treated the Guidelines as

mandatory, or failed to consider the § 3553(a) factors. Gall v. United States, 552

U.S. ___, 128 S.Ct. 586, 597, ___ L.Ed.2d ___ (2007). Appellant contends, here,

that the district court failed to consider the § 3553(a) factors and therefore failed

properly to determine the appropriate Guidelines sentence range. Appellant did

not present her procedural error argument to the district court; rather, she raises it

for the first time on appeal. We therefore consider it under the plain error

1
Appellant pled guilty pursuant to a plea agreement to Count One of a two-count
indictment. (Count Two charged appellant with identity fraud in violation of 18 U.S.C. §
1028(a)(7).) Using the name Martha Moreno and providing identification in Moreno’s name,
appellant took out a series of mortgage loans. The real Martha Moreno complained, and
appellant was indicted.

2
standard. Whether we consider the argument for error or plain error, however, the

result is the same; the argument is meritless.

The § 3553(a) factors include: (1) the nature and circumstances of the

offense and the history and characteristics of the defendant; (2) the need for the

sentence (A) to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense, (B) to afford adequate

deterrence to criminal conduct, (C) to protect the public from further crimes of the

defendant, and (D) to provide the defendant with needed educational or vocational

training or medical care; (3) the kinds of sentences available; (4) the Sentencing

Guidelines range; (5) pertinent policy statements of the Sentencing Commission;

(6) the need to avoid unwarranted sentencing disparities; and (7) the need to

provide restitution to victims. See 18 U.S.C. § 3553(a)(1)-(7).

Contrary to appellant’s position, the court explicitly stated that it had

considered the § 3553(a) factors. Moreover, the transcript of the sentencing

hearing reveals that the court implicitly considered many of the § 3553(a) factors

via its’ statements and the opportunity it provided appellant to present mitigating

evidence and argument prior to the imposition of sentence. In short, appellant has

not shown that her sentence is procedurally unreasonable.

II.

3
Appellant argues that her sentence is substantively unreasonable because

the district court did not properly weigh the § 3553(a) factors. She contends that

the court should have factored into its analysis the following facts: she committed

the crime under economic duress and hardship; she immediately and voluntarily

admitted her guilt; and several witnesses testified as to her character. Finally, she

says that her sentence, although within the Guidelines sentence range, was greater

than necessary to reflect the seriousness of the offense.

We consider whether a sentence is substantively unreasonable under the

abuse-of-discretion standard. Gall, 552 U.S. ____, 128 S.Ct. 586, 597. Such

consideration involves inquiring whether the factors in § 3553(a) support the

sentence in question. Id., 552 U.S. at ___, 128 S.Ct. at 600. Appellant’s burden is

to establish that the sentence is unreasonable in the light of the § 3553(a) factors

and the record as a whole. United States v. Talley, 431 F.3d 784, 786 (11th Cir.

2005). This burden is satisfied by showing that “the district court committed a

clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence

that lies outside the range of reasonable sentences dictated by the facts of the

case.” United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006).

When considering whether a defendant’s sentence is substantively

unreasonable, we do not assume that a sentence within the Guidelines sentence

4
range is per se reasonable. Talley, 431 F.3d at 787. Even so, “there is a range of

reasonable sentences from which the district court may choose, and when the

district court imposes a sentence within the advisory Guidelines range, [this court]

ordinarily will expect that choice to be a reasonable one.” Id. at 788.

The record of the sentencing hearing demonstrates that the district court

properly considered the § 3553(a) factors. The court explicitly stated, “I have also

considered the factors set forth in 18 United States Code, Section 5335(a).” The

40-months’ sentence was within the Guidelines sentence range as well as within

the statutory maximum of 30 years. The court determined that the sentence was

warranted after reviewing the presentence report and the arguments presented by

the parties. In addition, the court heard appellant’s testimony concerning the

nature of the offense, defense counsel’s remarks regarding appellant’s motives,

and the testimony of various character witnesses concerning her family

circumstances. Therefore, she has not shown that her sentence, one within the

Guidelines sentence range, is substantively unreasonable.

AFFIRMED.