901 F.3d 260 (5th Cir. 2018), 17-20520, United States v. Neba
|Citation:||901 F.3d 260|
|Opinion Judge:||HAYNES, Circuit Judge:|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee v. Marie NEBA, Defendant-Appellant|
|Attorney:||Michael F. Murray, Ellen R. Meltzer, Esq., Special Counsel, U.S. Department of Justice, Jeremy Raymond Sanders, Trial Attorney, U.S. Department of Justice, Criminal Division, Fraud Section, Washington, DC, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorneys Office, Southern Distric...|
|Judge Panel:||Before JOLLY, JONES, and HAYNES, Circuit Judges. EDITH H. JONES, Circuit Judge, concurring:|
|Case Date:||August 16, 2018|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Southern District of Texas, Melinda Harmon, U.S. District Judge
Michael F. Murray, Ellen R. Meltzer, Esq., Special Counsel, U.S. Department of Justice, Jeremy Raymond Sanders, Trial Attorney, U.S. Department of Justice, Criminal Division, Fraud Section, Washington, DC, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorneys Office, Southern District of Texas, Houston, TX, for Plaintiff - Appellee.
Michael John Khouri, Esq., Khouri Law Firm, A.P.C., Dallas, TX, for Defendant - Appellant.
Before JOLLY, JONES, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Marie Neba was convicted in a jury trial of numerous offenses related to Medicare fraud perpetuated by herself and her husband through their jointly owned company. The district court sentenced her to 900 months in prison, followed by a three-year term of supervised release. On appeal, Neba challenges her sentence on two bases: (1) the sentence was unreasonable by being greater than necessary to comply with 18 U.S.C. § 3553(a); and (2) the sentence was grossly disproportionate to her conduct in violation of the Eighth Amendment. Neba also argues that the district court erred in failing to grant her third motion to substitute counsel. We AFFIRM.
We first address Nebas two arguments related to her sentence. Because Neba did not object to either her presentence report or her sentence, we review for plain error. United States v. Heard, 709 F.3d 413, 425 (5th Cir. 2013). Under
plain error review, Neba must show: (1) "an error or defect ... that has not been intentionally relinquished or abandoned"; (2) a legal error that is "clear or obvious, rather than subject to reasonable dispute"; (3) that the error "affected the appellants substantial rights"; and (4) that the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings" such that this court should exercise its discretion to remedy the error. United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (alteration in original) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ).
A. Procedural and Substantive Reasonableness of the Sentence
Neba first argues that her sentence was greater than necessary to comply with the § 3553(a) sentencing factors. To determine if a sentence was indeed reasonable, we use a bifurcated review process. United States v. Scott, 654 F.3d 552, 554-55 (5th Cir. 2011) (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ). For the first consideration, We ... determine whether the district court committed any significant procedural error, such as: "(1) failing to calculate (or improperly calculating) the applicable Guidelines range; (2) treating the Guidelines as mandatory; (3) failing to consider the [ ] § 3553(a) factors; (4) determining a sentence based on clearly erroneous facts; or (5) failing to adequately explain the chosen sentence, including an explanation for any deviation from the Guidelines range."
Id. at 555 (quoting United States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008) ). If there was no procedural error, we then reach the second consideration, which is "the substantive reasonableness of the sentence, considering the factors in [ ] § 3553(a)." Id. (quoting United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009) ). A sentence within a properly calculated Guideline range is presumptively reasonable. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
Although Neba characterizes all of her § 3553(a) challenges as substantive reasonableness challenges, the issues she raises are related to (1) the district courts alleged belief that it was required to sentence her to the statutory maximum and (2) the district courts consideration of her arguments for a downward variance. These are procedural challenges. See id.
Nebas Guidelines range provided for up to a life sentence, limited to 900 months as the statutory maximum. Thus, her 900-month sentence was within the Guidelines range. Nonetheless, Neba maintains that the sentencing court mistakenly believed that it was required to sentence her to the statutory maximum, ignoring her arguments that she would be sufficiently punished by a lower sentence.
There is no indication of a mistaken belief on the part of the sentencing court that it was required to sentence Neba to 900 months. Neba points to the courts statement that the most important factor in determining the sentence was that the Guidelines recommended a life sentence. Stating that something is a "factor" does not mean, or even imply, that the judge considered it a mandate. The sentencing court reviewed the presentence report during sentencing and listed a number of "factors" that went into the sentencing decision, including Nebas "role in the offense, the amount of loss attributable to [Neba] compared to others, obstruction of justice, aggravating role enhancement, and most importantly, the [G]uideline range of life." Moreover, the court noted Nebas primary arguments for a downward departure— her
three minor children at home and her recent breast cancer diagnosis— just prior to sentencing. The court heard an explanation from the Government explaining why those facts should not affect Nebas sentence. In context, it is clear that the sentencing court considered the appropriate factors, including Nebas arguments for a...
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