United States v. Plate
| Decision Date | 05 October 2016 |
| Docket Number | No. 15-13928,15-13928 |
| Citation | 839 F.3d 950 |
| Parties | United States of America, Plaintiff–Appellee, v. Ane Plate, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Germaine Seider, Arthur Lee Bentley, III, U.S. Attorney's Office, Tampa, FL, Kara Marie Wick, Nicole M. Andrejko, U.S. Attorney's Office, Orlando, FL, for Plaintiff–Appellee.
Aliza Bloom, Federal Public Defender's Office, Tampa, FL, Donna Lee Elm, Rosemary Cakmis, Maria Guzman, Federal Public Defender's Office, Orlando, FL, for Defendant–Appellant.
Before: MARTIN and JORDAN, Circuit Judges, and VINSON,* District Judge.
This case raises a common dilemma in sentencing defendants for financial crimes: balancing the payment of restitution for the victims against the length of incarceration for the defendant. Ane Plate pled guilty to embezzlement by a bank officer or employee, in violation of 18 U.S.C. § 656
. When she was unable to pay full restitution, she was sentenced to 27 months in prison. Plate argues on appeal that the sentence violated her constitutional rights and that it was both procedurally and substantively unreasonable. After careful review, and with the benefit of oral argument, we hold that the sentence was substantively unreasonable and that a new sentencing is required.
Born in American Samoa, Polynesian Islands, Plate moved to Hawaii with her family when she was five or six years old. While attending the University of Hawaii, she met her future husband Raymond. She was 20 years old at that time, and he was 43. Raymond worked for the District Courts of Hawaii and eventually became a supervisor. He retired in 1989, after which the couple moved to Florida where Plate was employed as a financial assistant or advisor for the next 25 years.
During the time relevant to this case, Plate worked at Wells Fargo Advisors Financial Network (“Wells Fargo”) at their branch office in Orlando, Florida. She was the long time financial advisor for an elderly couple, Mr. and Mrs. D.M., and she managed their securities and bonds portfolio. Over the course of her 20–year relationship with the couple, they became close friends. As their mental capacities diminished with age—and after they moved into an assisted living facility—Plate began to perform duties for the couple outside and beyond the traditional financial advisor role, including driving Mr. D.M. to his bank, helping Mrs. D.M. obtain her medical prescriptions, and performing other care-giver activities.
In 2013, Plate told Mr. and Mrs. D.M. that her husband Raymond had been suffering from a terminal illness to which he eventually succumbed in September of that year. After his death, Plate asked the couple for money to help with funeral expenses, and they gave her a personal check for $9,000.00. Shortly thereafter, on or about October 22, 2013, Plate induced Mr. D.M. to execute a Wells Fargo ACH Authorization Agreement that allowed for the transfer of funds from the couple's Wells Fargo trust account into a separate account at SunTrust Bank. From October 2013 through May 2014, she manipulated Mr. D.M. into writing personal checks to her (12 total) from the SunTrust account, and she liquidated securities in the trust account by making a number of unauthorized sales (15 total). She used the funds that she obtained from these transactions to, inter alia , pay her mortgage and make major upgrades to her home, including new fencing and air conditioning units. In total, she defrauded the couple of $176,079.70, and she left little to nothing in their account.
In July 2014, a Secret Service agent interviewed the couple at their assisted living facility. Mr. D.M.—who suffered from dementia—was incoherent during the course of the interview, and the couple's adult son confirmed that his parents had diminished mental capacity. The next month, on August 26, 2014, the agent contacted and interviewed Plate at a public coffee shop, during which she gave a written confession, detailed the extent of her fraud, and expressed remorse for her actions. By indictment dated April 15, 2015, she was charged with a single count of embezzlement by a bank officer or employee in violation of 18 U.S.C. § 656
. She self-surrendered on April 20, 2015, and she was released with pretrial service supervision that same day. She subsequently pled guilty to the offense as charged in the indictment.
The presentence investigation report (“PSI”) calculated a base offense level of 7 under U.S.S.G. § 2B1.1(a)(1)
. Plate received a 10–level enhancement under § 2B1.1(b)(1)(F) based on the amount of the loss, along with a 4–level enhancement under § 2B1.1(b)(19)(A)(iii) because the crime involved a violation of securities law and because she was a financial advisor. After receiving a 3–level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a)–(b), her total offense level was 18. Plate had no prior convictions, which resulted in a criminal history category of I. Based on an offense level of 18 and a criminal history category of I, her guideline range was 27 to 33 months.
The PSI reported that Plate, who was 59 years old at the time of sentencing, had a traumatic childhood during which she witnessed her mother being physically abused by four or five different husbands. The PSI also reported that her husband of more than 30 years (who was described as “her rock and best friend”) had died in September 2013, and she had reportedly “not been able to overcome his death.” In or about June 2015, after the events giving rise to this case, Plate was diagnosed with depressive disorder
, sold her house, and moved in with her brother. She was unemployed at that time, with no significant assets or liabilities, and her net worth was $47,500.00. The PSI did not identify any factors that would warrant departure from the guideline range of 27 to 33 months, but it did identify several factors that might warrant a sentence outside the advisory range, namely, her age, upbringing, mental condition, and the fact that she had no prior criminal history. Neither party objected to the PSI.
Prior to sentencing, Plate filed a memorandum with the district court, asking for a sentence of probation (which she realized would be a “tremendous variance”). She maintained that she was extremely remorseful, had sold her house to help pay restitution, and was determined “to pay back ever [sic] penny that is owed.” She argued that probation was appropriate in her case—and that recidivism and safety of the community were not a concern—because her crime was an anomaly brought on by depression and reduced mental capacity following the death of her husband.
In support of her position and argument, Plate attached a forensic evaluation by a licensed psychologist, Jacquelyn Olander, Ph.D. According to Dr. Olander's report, Raymond made most of couple's “important life decisions” and “took care of everything” during their marriage. After he died, Plate “experienced confusion and significant uncertainty about herself.” Having to assume the responsibilities of life without her husband, Dr. Olander opined, “created much fear and apprehension such that she developed a maladaptive coping style of avoidance characterized by apathy and indifference.” Because of this “maladaptive coping to stress” (coupled with her “impaired emotional understanding” and “reduced mental capacity”), Dr. Olander determined that Plate “may have engaged in illegal behaviors based upon her attempt to replace or substitute the loss of her husband without any conscious awareness of the occurring underlying psychological processes.”1
In addition to Dr. Olander's report, the sentencing memorandum attached numerous letters from Plate's siblings, coworkers, her supervisor at Wells Fargo, and former clients, all expressing their belief that her actions were completely out of character and detailing the profound impact that her husband's death had on her. Perhaps most notably, the victims' adult children also wrote on her behalf, saying what a good and trusted friend she was and representing that their “whole family” believed that sending her to jail would not be appropriate on the facts of the case.2
At the sentencing hearing on August 19, 2015, Plate told the district judge that she was “truly sorry.” She also told the judge (through her attorney) that she brought $45,000.00 in cashier's checks from the proceeds of the sale of her house to put toward restitution. Because the PSI calculated her net worth as $47,500.00, that was “pretty much everything she ha[d].” Her attorney further argued that her behavior was “aberrant” and that a non-incarceration (probationary) sentence was sufficient punishment as she “will live with this the rest of her life and her remorse and her shame.”
The government did not dispute or challenge anything that Plate said during the sentencing hearing, except to say that a probationary sentence was not possible. The government argued that because a violation of Section 656
is a Class B felony, the district judge was required to impose a term of prison (although it did request a low-end guideline sentence). Plate pointed out in response, however, that because she self-surrendered on April 20, 2015, the district judge could sentence her to “time-served” (for that one day) followed by supervised release, which “would be a legal sentence if the Court decided that, balancing out all the factors under [Title 18, United States Code, Section 3553(a)(1)–(7) ], a sentence of non-imprisonment was appropriate.”
After noting that Plate had used her position of trust to take advantage of “demented” and “helpless” victims, the district judge stated (emphasis added):
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