633 F.3d 469 (6th Cir. 2011), 09-1675, United States v. Lanning

Docket Nº:09-1675, 09-1715.
Citation:633 F.3d 469
Opinion Judge:RONALD LEE GILMAN, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Timothy Andrew LANNING (09-1675) and Paula Marie Calderon (09-1715), Defendants-Appellants.
Attorney:Donald W. Garthe, Grandville, Michigan, Michael Darragh Hills, Kalamazoo, Michigan, for Appellants. Nils R. Kessler, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.
Judge Panel:Before: SILER, GILMAN, and GRIFFIN, Circuit Judges.
Case Date:February 02, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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633 F.3d 469 (6th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Timothy Andrew LANNING (09-1675) and Paula Marie Calderon (09-1715), Defendants-Appellants.

Nos. 09-1675, 09-1715.

United States Court of Appeals, Sixth Circuit.

February 2, 2011

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[Copyrighted Material Omitted]

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ON BRIEF:

Donald W. Garthe, Grandville, Michigan, Michael Darragh Hills, Kalamazoo, Michigan, for Appellants.

Nils R. Kessler, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: SILER, GILMAN, and GRIFFIN, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Timothy Andrew Lanning and Paula Marie Calderon were each charged with conspiring to steal and alter checks taken from the mail, which they then presented to unsuspecting stores for merchandise that was later returned for a cash refund. They both pled guilty to the charged offense. The district court subsequently sentenced each of them to 42 months' imprisonment and required restitution of the amount stolen. In both cases, the court varied upward from the applicable United States Sentencing Guidelines (U.S.S.G.) range. For the reasons set forth below, we AFFIRM the judgments of the district court.

I. BACKGROUND

Lanning and Calderon engaged in a joint scheme to steal personal checks from individuals' mailboxes, to alter those checks in order to use them to purchase items at retail stores, and then to return those items to the stores for cash. The technical charges in their joint indictment were for conspiracy to steal mail, to possess stolen mail, and to possess and utter forged securities, all in violation of 18 U.S. C. §§ 371, 1708, and 513(a). In total, they stole approximately $15,000 through this scheme. Both defendants pled guilty to the first count in the indictment, which subjected each of them to a statutory maximum sentence of five years' imprisonment. Their separate appeals were consolidated for the purposes of briefing and submission.

A. Lanning's sentence

Based on a total offense level of 8 and a criminal history category of VI, the applicable Guidelines range for Lanning was 18 to 24 months of imprisonment. The district court denied the government's motion for an upward departure and Lanning's motion for a downward departure, both of which were based on U.S. S.G. § 4A1.3. This Guideline permits an upward or a downward departure from the otherwise applicable Guidelines range if the defendant's criminal-history scoring substantially under- or over-represents the seriousness of the prior offenses. The court did, however, vary upward after considering the 18 U.S. C. § 3553(a) sentencing factors by sentencing Lanning to 42 months of imprisonment.

When the district court invited Lanning to speak on his own behalf, Lanning argued that his unhappiness with his current situation and his support network would prevent him from reoffending. He also explained that a number of his criminal-history points were for driving-related offenses and that his current conviction was the most serious that he had ever faced. The government responded by discussing the severity of Lanning's crime, its effect on the victims, Lanning's allegedly pandering statements made in order to receive a

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lower sentence, and his extensive criminal history. Lanning then sought to readdress the court in order to " straighten out a fact" after the government made its argument, but the court denied his request.

In deciding to vary upward, the district court went through the 18 U.S. C. § 3553(a) sentencing factors individually and explained how each factor applied in Lanning's case. The court further noted that although Lanning's offense was not violent or drug related, his actions of stealing mail and altering checks are very serious in their own right because the actions undermine the integrity of the mail system, cause distress to the affected individuals, and disrupt society. Lanning's lengthy criminal history also influenced the court's decision to vary upward. The court noted that he had a continuous criminal history going back approximately ten years in many different jurisdictions, including numerous theft charges. In the court's assessment, despite Lanning's " impressive vocabulary" and apparent potential for gainful employment, he essentially made his living as a thief.

The district court then considered the sentencing goals enumerated in 18 U.S. C. § 3553(a). Lanning's multiple offenses over a long duration clearly showed, according to the court, that he " doesn't have any respect for the law" and warranted substantial punishment. The goals of providing deterrence and protecting the public also weighed in favor of a more severe punishment because the court determined that, " without a significant period of incarceration," Lanning would very likely commit further criminal offenses. It concluded that substantial punishment was therefore necessary to protect the public from people who " violate the trust that we all are entitled to have in the integrity of our postal service, and our financial system." The court also thought that the Bureau of Prisons might have some treatment that could help Lanning deal with his tendencies to steal and that the Bureau could determine whether he needed any drug treatment. Finally, the court considered the goal of avoiding unwarranted sentencing disparities between similarly situated defendants, comparing Lanning's sentence to the sentences of both Calderon and other defendants nationwide who had committed similar offenses.

Accounting for all of these factors, the district court concluded that the Sentencing Guidelines did not " properly reflect the factors under the statute." The court therefore granted the government's motion for an upward variance and sentenced Lanning to 42 months' imprisonment, followed by three years of supervised release, and ordered $15,286.92 in restitution.

B. Calderon's sentence

Calderon's total offense level of 8 and criminal history category of V yielded a Guidelines range of 15 to 21 months of imprisonment. Ultimately, however, the court varied upward to sentence Calderon the same as Lanning— to 42 months of imprisonment, followed by three years of supervised release, and ordered $15,286.92 in restitution.

As with Lanning, the district court engaged in a detailed analysis of the 18 U.S. C. § 3553(a) sentencing factors with regard to Calderon. The court commented on a number of the same factors that it discussed during Lanning's sentencing, and concluded that " the seriousness of this offense goes way beyond what the advisory Guidelines range might suggest." In analyzing Calderon's personal history and characteristics, the court pointed out that she has a criminal history going back at least ten years, " mostly for the same kind of offenses that we see here." Although

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the court considered various positive or sympathetic details in her history, including her working on a General Equivalency Diploma (GED) and dropping out of school at age 14 because she was pregnant, the court concluded that " [w]hatever good things we see are balanced by every indication in the record that she will continue to offend." The court thus concluded that Calderon's advisory Guidelines range did not adequately account for her history and characteristics.

Addressing the 18 U.S. C. § 3553(a) goals of providing just punishment and promoting respect for the law, the district court reasoned that Calderon's recorded phone calls made from prison that encouraged a family member to commit the very type of crime that Calderon had committed in the present case " establish a total lack of respect for the law." It determined that these conversations, in combination with " the nature and extent of this offense [,] call for significant punishment beyond that which the Guidelines provide." The court also noted Calderon's violation of the public trust, the individual trust of her victims, and her high potential for reoffending. These aspects of her crimes led the court to conclude that the values of deterrence and protection of the public " outweigh[ed] the fairly minimal amount of incarceration suggested by the ... advisory Guidelines." Finally, the court considered the need for rehabilitation and avoiding unwarranted sentencing disparities. The court strongly believed, based on the statutory factors, " that an advisory Guidelines range of 15 to 21 months is not anywhere near adequate to address the offense and the offender currently before this court."

C. Lanning's and Calderon's appeals

Lanning and Calderon each timely filed notices of appeal. On appeal, Lanning argues that his sentence is substantively unreasonable because the district court granted an upward variance based on his criminal history after denying an upward departure based on the same criminal history. He also argues that he was denied his right to refute an allegedly untruthful statement of fact made by the government at sentencing. Calderon, in turn, argues that her sentence is unreasonable because the district court granted an upward variance based mainly on her criminal history, which had already been accounted for by the court's upward departure in calculating her criminal-history level.

II. ANALYSIS

Criminal sentences are reviewed for procedural and substantive reasonableness. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This review is conducted under the deferential abuse-of-discretion standard. United States v. Novales, 589 F.3d 310, 314 (6th Cir.2009). Substantive-reasonableness claims do not need to be raised before the district court to be preserved for appeal. United States v. Penson, 526 F.3d 331, 337 (6th Cir.2008). But " if a sentencing judge asks ... whether there are any objections not previously raised, in compliance with the procedural rule set forth in United States v. Bostic, 371 F.3d 865 (2004)[,]...

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