U.S. v. Cage

• Decision Date: 15 August 2006
• Docket Number: No. 05-5241.,05-5241.
• Citation: 458 F.3d 537
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Janell CAGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

458 F.3d 537

UNITED STATES of America, Plaintiff-Appellee, v. Janell CAGE, Defendant-Appellant.

No. 05-5241.

United States Court of Appeals, Sixth Circuit.

Argued: March 16, 2006.

Decided and Filed: August 15, 2006.

ARGUED: Edwin A. Perry, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. Camille R. McMullen, Assistant United States Attorney, Memphis, Tennessee, for Appellee. ON BRIEF: April R. Goode, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. Camille R. McMullen, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: BATCHELDER, CLAY, and McKEAGUE, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court, in which McKEAGUE, J., joined.

CLAY, J. (pp. 544-49), delivered a separate dissenting opinion.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

On November 25, 2003, a federal grand jury charged defendant-appellant, Janell Cage ("Cage"), with knowingly and with intent to defraud possessing fifteen access devices in violation of 18 U.S.C. § 1029(a)(2) and 18 U.S.C. § 3147(1). Cage pleaded guilty to Counts 1 and 2, and the district court sentenced her to 37 months in prison followed by two years of supervised release. At the sentencing hearing the court stated that a sentence that falls within the Guidelines range enjoys a presumption of reasonableness. The court sentenced Cage at the bottom of the recommended range. Cage filed this timely appeal challenging the district court's method of sentencing and the reasonableness of her sentence under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the following reasons, we AFFIRM the district court's determination.

I.

Janell Cage has a history of engaging in credit card and access device fraud. From December 2002 through May 2003, Cage used her position as a medical transcriptionist to access confidential information and fraudulently open new credit accounts. She submitted over 30 credit applications, withdrew cash advances, and purchased and insured motor vehicles. Cage admitted using her employment to obtain patients' names, dates of birth, and Social Security numbers that she then used to open and take over credit card accounts. Her victims' total losses from her conduct exceeded $132,000. Cage was indicted on June 30, 2003, on several fraud counts. She pleaded guilty to one count of access device fraud in violation of 18 U.S.C. § 1029(a)(2), and was sentenced to 30 months in prison, followed by three years of supervised release. See United States v. Janell Cage, 134 Fed.Appx. 833, 834 (6th Cir.2005). She appealed, and on May 13, 2005, her case was remanded for resentencing consistent with Booker. Id. at 838.

After she was indicted but before she was sentenced for those offenses, Cage again engaged in access device fraud. Between August and November 2003, Cage reactivated several patient accounts to run credit reports in order to take over credit card accounts or submit fraudulent applications. She fraudulently used credit cards in the names of Nadine King and Phyllis Wilkie to purchase merchandise in excess of $28,000, and used another patient's name to submit additional loan applications. A search of Cage's residence pursuant to a search warrant revealed more evidence of access device fraud and purchases made with fraudulent accounts. The total loss attributable to her conduct was $108,126.67.

On November 25, 2003, Cage was indicted for violating 18 U.S.C. § 1029(a)(2) and 18 U.S.C. § 3147(1), giving rise to the instant case. On September 29, 2004, Cage pleaded guilty to Counts 1 and 2 of the indictment and, on February 1, 2005, the district court sentenced her to 37 months in prison to run concurrently with her previous 30 month sentence, followed by two years of supervised release and restitution.

Cage's sentencing hearing was held on February 1, 2005. At the outset of the hearing, the district court recognized "that we are proceeding under the new regime, the post-Booker regime" whereby sentencing is discretionary and the court is obligated to "consider[] the Sentencing Guidelines and the Guideline ranges before the court does anything else." The court further stated:

As a general proposition, I suspect the court will be sentencing in the Guidelines even though the sentencing Guidelines are no longer mandatory. Because one test of reasonableness is ... whether the court has considered the Guidelines. But it does mean that the court can depart upward or downward under the same circumstances that it would have departed under the Guidelines. And it means that the court can move away from the Guidelines if the court thinks that that's necessary to impose a reasonable sentence.

The court explained that in light of Booker it could impose a Guidelines sentence, apply Guidelines standards under the exceptions provided in the Guidelines, or impose a non-Guidelines sentence. The district court indicated that any departure from the Guidelines would be pursuant to the factors prescribed in 18 U.S.C. § 3553(a).

Cage did not object to the underlying facts set forth in the pre-sentence report and, based on those facts, the district court properly calculated Cage's sentence under the Guidelines, finding that Cage's total offense level was 19, her criminal history category was 3, and the resulting Sentencing Guidelines range was 37 to 46 months. Cage requested a non-Guidelines sentence, asking the court for a downward departure in consideration of her young children and family situation. The court acknowledged the presence of Cage's parents and small children, and heard testimony about the present family situation from Cage's husband. Nevertheless, the court declined to depart from the Guidelines.

After noting the tragedy of Cage's family situation, the court observed that such tragedy is a regular consequence of criminal conduct, and highlighted the devastating effect that Cage's conduct had on her victims and their families. The court added that the seriousness of Cage's continued criminal conduct, even after her initial arrest and prosecution, weighed against a downward departure from the Guidelines. The court explained:

The first issue is whether the court should sentence in accordance with the Guidelines. And I believe the sentence under the Guidelines, considering all of the circumstances ... in this case, will be reasonable. Under Booker, there is a presumption in favor of the Guidelines because the Guidelines express the public policy and the intention of Congress as to the court's authority of these matters and the considerations that the court should address. And I think that ... a sentence under the Guidelines would be a reasonable sentence.

The court then sentenced Cage to 37 months of incarceration at a boot camp facility, if eligible, to run concurrently with her earlier 30 month term, followed by two years of supervised release, and ordered her to pay $45,052.32 in restitution.

II.

After United States v. Booker invalidated the mandatory use of the Sentencing Guidelines and declared them "effectively advisory," the district court has been tasked with imposing "`a sentence sufficient, but not greater than necessary to comply with the purposes' of § 3553(a)(2)." United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006). We review such sentences for "reasonableness," and must affirm the district court's determination if it is reasonable. United States v. Christopher, 415 F.3d 590, 594 (6th Cir.2005). A sentence is unreasonable if the sentencing court fails to consider the applicable Guideline range or neglects the factors articulated in 18 U.S.C. § 3553(a).¹ See United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005).

Cage contends that the court applied an "erroneous method" in determining her sentence, which rendered it unreasonable under Booker. She argues that the district court erred in affording the Sentencing Guidelines range a presumption of reasonableness when it asserted inter alia that "there is a presumption in favor of the Guidelines because the Guidelines express the public policy and intention of Congress ...." She suggests that the court failed to integrate the § 3553 statutory factors properly as required by Booker because it mistakenly focused on what it believed would be a reasonable sentence within the Guidelines range.

Cage presents the same argument raised and addressed in United States v. Williams, 436 F.3d 706 (6th Cir.2006), and her claim is foreclosed. In Williams, we joined with several of our sister circuits in "articulat[ing] what weight should be accorded the Guidelines relative to the other sentencing factors listed in § 3553(a)."² Williams, 436 F.3d at 707-08. In that case, "the district court determined that `the advisory nature of the guidelines leads the court to conclude that this range of sentences ... is a reasonable range.' Williams argues from this that the district court improperly presumed the Guidelines range to be reasonable." Id. at 708. Cage raises this same concern, arguing first that the district court erred in beginning with the presumption that the Guidelines are reasonable, and second, that the court failed to indicate that it was considering any of the other factors listed in § 3553(a). Here, as did the defendant in Williams, Cage suggests that because the district court presumed the Guidelines range to be reasonable, she was deprived of the proper integration of the § 3553(a) statutory factors. Id. at 707. We are not persuaded, and we reaffirm our position in Williams "crediting sentences properly calculated under the Guidelines with a rebuttable presumption of reasonableness." Id. at 708. Williams is controlling, and Cage's claims lack merit.

We pause to make two observations. First, in United States v. Foreman, we recently suggested in dicta that Williams' statement regarding the...