NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 5, 2013
Decided April 11, 2013
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 11-3626
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 10 CR 544-1
ALBERTA PIERCE,
Defendant-Appellant. Robert M. Dow, Jr.,
Judge.
ORDER
After Alberta Pierce pleaded guilty to mail fraud, 18 U.S.C. § 1341, the district court
imposed a below-guidelines sentence of three years’ probation with the first six months to
be served as home confinement. Pierce now argues that she should have received a lower
sentence. Because the district court committed no procedural error and imposed a
reasonable sentence, we affirm the judgment of the district court.
Pierce was the representative payee for her husband’s social security disability
payments while he resided at a nursing home in a vegetative state. Each month she
received money from the Social Security Administration to be used exclusively for her
No. 11-3626 Page 2
husband’s care. From 2004 to 2006, she spent about $37,000 of his social-security benefits
for her own personal use and submitted false accounting reports to the Social Security
Administration.
Pierce was charged with six counts of mail fraud, 18 U.S.C. § 1341, one count of theft
of government funds, 18 U.S.C. § 641, and one count of making a false statement, 18 U.S.C.
§ 1001. She pleaded guilty to one count of mail fraud and the government dismissed the
remaining charges.
The probation office calculated a base offense level of 11 and criminal history
category of I, yielding a guidelines imprisonment range of 8 to 14 months. That guidelines
range is within Zone B of the Sentencing Table, U.S.S.G. ch. 5, pt. A, which made Pierce
eligible for a term of 1 to 5 years’ probation, provided that the court impose a period of
intermittent confinement, community confinement, or home detention for no less than the
minimum period of imprisonment specified by the guidelines range (8 months in Pierce’s
case), U.S.S.G. §§ 5B1.1(a)(2), app. note 1(B), 5B1.2(a)(1). The probation office, however,
recommended only 6 months for the period of home detention. The probation office also
alerted the court to the policy statement acknowledging the relevance of a defendant’s
mental condition to determining an appropriate sentence. U.S.S.G. § 5H1.3. But, although
Pierce suffered from a delusional disorder since 2010, the probation office concluded that
her condition was not sufficiently severe to warrant a downward adjustment.
Pierce did not object to the presentence report but requested that the court impose
probation in lieu of imprisonment and disregard the condition requiring her to serve
intermittent confinement, community confinement, or home detention. In support Pierce
argued that her physical and mental health problems would make it difficult for her to
comply with home detention. She also emphasized her crime-free past and acceptance of
responsibility.
At sentencing the district judge asked the parties to address the possibility of home
detention as an alternative to incarceration. A probation officer assured the judge that, if
home detention were imposed, Pierce would be allowed to leave for medical and
psychological treatment. Pierce explained that she would prefer home detention over
incarceration and confirmed that she would be able to comply with its terms. The district
judge agreed that Pierce should not be incarcerated, given her age (61 at the time), health
problems, and that this crime was “obviously an aberration.” But the judge concluded that
probation alone would be an insufficient punishment given the seriousness of the offense
and the need to enforce and deter crimes that defraud the government. The judge imposed
three years’ probation with the first six months to be served as home detention—a departure
from the eight months specified by the guidelines.
No. 11-3626 Page 3
Pierce first argues that the district court procedurally erred by failing to properly
consider a relevant policy statement. See 18 U.S.C. § 3553(a)(5)(A). She asserts that the
district court found that her criminal activity was aberrant behavior, see U.S.S.G. § 5K2.20,
but then ignored this finding when imposing her sentence. Pierce did not object to the
district court’s treatment of aberrant behavior at sentencing but now contends that, because
considering aberrant behavior is mandatory and the district judge failed to explain how
other factors offset that mitigating factor, this procedural error requires a remand for
resentencing.
A sentencing court procedurally errs if it fails to consider the § 3553(a) factors or
adequately explain the sentence imposed. United States v. Wasilewski, 703 F.3d 373, 377 (7th
Cir. 2012). Section 3553(a)(5)(A) directs the court to consider any pertinent policy statement
issued by the Sentencing Commission. Although procedural errors are typically reviewed
under a non-deferential standard, alleged procedural deficiencies raised for the first time on
appeal are reviewed for plain error. United States v. Corona-Gonzalez, 628 F.3d 336, 340 (7th
Cir. 2010).
We disagree with Pierce that the district court, in using the word “aberrant,” was
referring to § 5K2.20. Rather, it appears that the court was using the word as it is commonly
spoken in everyday language. Pierce never requested leniency based on aberrant behavior
and did not refer the court to § 5K2.20. The closest she came to making the argument is in
her sentencing memorandum where she requested a below-guidelines sentence because she
has never previously been charged with a crime. But that short assertion was insufficient to
alert the sentencing judge to the policy statement. The court did not plainly err by failing to
consider an argument that was not brought to its attention. See United States v. Halliday, 672
F.3d 462, 474 (7th Cir. 2012); United States v. Johnson, 534 F.3d 692, 695–96 (7th Cir. 2008);
United States v. Holt, 486 F.3d 997, 1004 (7th Cir. 2007).
Even if Pierce’s sentencing memorandum had asked the court to apply the policy
statement or the district court’s reference to aberrant behavior was a discussion of a
mitigation argument that it raised—and rejected—sua sponte, her arguments still must fail.
Although Pierce correctly notes that considering relevant policy statements—here, aberrant
behavior, U.S.S.G § 5K2.20—is mandatory, it is not mandatory to apply a policy statement;
like the rest of the guidelines, they are advisory. United States v. Reyes-Medina, 683 F.3d 837,
841–42 (7th Cir. 2012). Moreover, the language of the policy statement on aberrant behavior
is permissive: “The court may depart downward” if the crime “represents a marked
deviation by the defendant from an otherwise law-abiding life.” U.S.S.G § 5K2.20 (emphasis
added).
No. 11-3626 Page 4
And the court sufficiently justified its refusal to further depart downward. To reject a
mitigation argument, “[a] short explanation will suffice where the context and record make
clear the reasoning underlying the district court’s conclusion.” United States v. Schroeder, 536
F.3d 746, 755 (7th Cir. 2008). The district court repeatedly explained that probation alone
was an insufficient punishment given the seriousness of the offense. Although confident
that this crime was an aberration and that Pierce would not reoffend, the district court
concluded that defrauding the government (and by extension all taxpaying citizens) by
converting $37,000 of social-security payments for personal use is a serious offense that
must be punished and deterred. The sentencing transcript shows that the district court
considered and discounted Pierce’s aberrant behavior; we require no more. See Reyes-
Medina, 683 F.3d at 842; United States v. Curby, 595 F.3d 794, 797–98 (7th Cir. 2010); United
States v. Spano, 447 F.3d 517, 519 (7th Cir. 2006).
Pierce next argues that the district judge imposed a substantively unreasonable
sentence. The sentence imposed is greater than necessary, she asserts, because the court
cited only the seriousness of the offense to counter her mitigating arguments and that factor
was already incorporated into her offense level through the 6-level enhancement for losses
greater than $30,000. U.S.S.G. § 2B1.1(b)(1)(D). Pierce concludes that the court imposed an
“effective maximum sentence” and unreasonably ignored all her mitigating factors.
A below-guidelines sentence, like one within the guidelines, is presumed reasonable
on appeal. Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Vallone, 698 F.3d 416,
488 (7th Cir. 2012); United States v. Pape, 601 F.3d 743, 746 (7th Cir. 2010). Pierce bears the
heavy burden of overcoming this presumption. See United States v. Lemke, 693 F.3d 731,
733–34 (7th Cir. 2012); United States v. Tahzib, 513 F.3d 692, 695 (7th Cir. 2008) (noting that
below-guidelines sentence will almost never be unreasonable).
Pierce has not identified any reason to set aside the presumption of reasonableness.
First, her argument that the district court imposed a maximum sentence is wrong. Pierce
received a below-guidelines sentence. Her guidelines range—under the probation
option—is 1 to 5 years’ probation with no less than 8 months’ of intermittent confinement,
community confinement, or home detention. U.S.S.G. §§ 5B1.1(a)(2), app. note 1(B),
5B1.2(a)(1). The court imposed 3 years’ probation but only 6 months’ home detention. That
Pierce’s sentence is at the top of the probation office’s recommendation does not change the
guidelines range or disturb the presumption of reasonableness. See United States v. Allan, 513
F.3d 712, 715 (7th Cir. 2008) (acknowledging that district court is free to reject probation
office’s recommendations). And her argument that the district court failed to explain its
decision is repetitious of her argument for procedural error, which, as discussed above,
lacks merit.
No. 11-3626 Page 5
Finally, Pierce’s contention that the district court considered only the seriousness of
the offense is unpersuasive. The district court balanced her age, physical and mental
conditions, and aberrant behavior against the seriousness of the offense, detriment to the
public, and need to deter frauds against the government. The court was not required to
accept Pierce’s asserted mitigation arguments and reasonably could conclude that Pierce, by
converting $37,000 of social-security payments for personal use, committed a serious crime
and did not deserve as lenient of a punishment as she requested. See Reyes-Medina, 683 F.3d
at 842–43; United States v. Coopman, 602 F.3d 814, 818–19 (7th Cir. 2010) (acknowledging
district court’s discretion to disagree with defendant’s mitigation arguments); United States
v. Busara, 551 F.3d 669, 674 (7th Cir. 2008) (noting district court’s discretion to assign
different weights to § 3553(a) factors and affirming sentence based on conclusion that
seriousness of offense outweighed mitigating factors).
For the foregoing reasons we AFFIRM the judgment of the district court.