United States v. Brenda Willoughby

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 18, 2020
• Docket: 19-12599
• Status: Unpublished

Opinion

Case: 19-12599 Date Filed: 03/18/2020 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12599 Non-Argument Calendar ________________________

D.C. Docket No. 6:09-cr-00074-CEM-LRH-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRENDA WILLOUGHBY, a.k.a. Ceci, a.k.a. Carol Willoughby, a.k.a. Carol Morgan,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(March 18, 2020) Case: 19-12599 Date Filed: 03/18/2020 Page: 2 of 8

Before BRANCH, LAGOA, and HULL, Circuit Judges.

PER CURIAM:

Following her guilty plea, Brenda Willoughby appeals the substantive

reasonableness of her above-guideline 113-month sentence for access-device fraud

and theft of government property. She argues that her sentence is substantively

unreasonable. For the following reasons, we affirm.

I. Background

From 2004 to 2009, Willoughby defrauded the Social Security

Administration (“SSA”) by making materially false and misleading statements in

order to receive SSA benefits. Also, from 2006 to 2007, Willoughby held herself

out as a travel agent while stealing her clients’ identities and credit card

information. In May 2009, a federal grand jury indicted Willoughby on 12 counts

of criminal conduct in connection with these actions, including one count of access

device fraud,1 one count of mail fraud,2 one count of theft of government

property, 3 one count of fraud against the Social Security Administration,4 five

1 18 U.S.C. § 1029(a)(5), (c)(1)(A)(ii); id. § 2. 2 18 U.S.C. § 1341; id. § 2. 3 18 U.S.C. § 641. 4 42 U.S.C. § 1383a(a)(3).

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counts of falsely representing a social security number,5 and two counts of false

bankruptcy declarations.6 Willoughby then fled from Florida to Tennessee,

deliberately and successfully evading law enforcement for over nine years. Upon

her arrest, she admitted that she had continued to engage in fraud during her time

in Tennessee. In March 2019, Willoughby pleaded guilty to the counts of access-

device fraud and theft of government property pursuant to a written plea

agreement, and the other charges were dropped.

At sentencing, the district court varied upward from the guideline range of

63 to 78 months and sentenced Willoughby to 113 months and 17 days. The court

noted that it had considered the Guidelines, the § 3553(a) factors, and the

numerous mitigating factors presented by Willoughby’s attorney, such as her poor

health and tumultuous upbringing. The court nevertheless varied upward on

account of Willoughby’s extensive criminal history, the seriousness of and the

number of persons victimized by her fraud crimes, and the time Willoughby

evaded law enforcement. The court also noted that her sentence is “exactly the

amount of time [she] absconded.” Willoughby timely appealed.7

5 42 U.S.C. § 408(a)(7)(B). 6 18 U.S.C. § 152(3). 7 We note that Willoughby’s plea agreement contains an appeal waiver which does not bar this appeal. The appeal waiver excepts from its general prohibition appeals on “the ground that the sentence exceeds the defendant’s applicable guidelines range as determined by the 3 Case: 19-12599 Date Filed: 03/18/2020 Page: 4 of 8

II. Standard of Review & Applicable Law

We review the reasonableness of a sentence under the deferential abuse-of-

discretion standard, requiring the party challenging the sentence to prove that the

sentence is unreasonable. United States v. Rosales-Bruno, 789 F.3d 1249, 1254–

56 (11th Cir. 2015). We evaluate the substantive reasonableness of a sentence by

considering the totality of the circumstances and whether the sentence achieves the

sentencing purposes stated in 18 U.S.C. § 3553(a).8 United States v. Sarras, 575

F.3d 1191, 1219 (11th Cir. 2009).

The sentencing court has discretion to accord particular weight to any

specific § 3553(a) factor. United States v. Clay, 483 F.3d 739, 743 (11th Cir.

2007). A district court abuses its discretion by (1) failing to consider relevant

factors that were due significant weight; (2) giving an improper or irrelevant factor

significant weight; or (3) committing a clear error of judgment in considering the

proper factors. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en

banc). “A district court’s unjustified reliance on any single § 3553(a) factor may

Court.” Because Willoughby appeals the substantive reasonableness of the district court’s above-guideline sentence, Willoughby’s appeal is proper. 8 “The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed education or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to victims.” United States v. Trailer, 827 F.3d 933, 936 n.2 (citing 18 U.S.C. § 3553(a)). 4 Case: 19-12599 Date Filed: 03/18/2020 Page: 5 of 8

be a ‘symptom’ of an unreasonable sentence,” but does not indicate that the

sentence is “necessarily unreasonable.” United States v. Williams, 526 F.3d 1312,

1322 (11th Cir. 2008) (per curiam) (emphasis added) (quoting United States v.

Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). Rather, a district court is “permitted

to attach great weight to one factor over others.” United States v. Overstreet, 713

F.3d 627, 638 (11th Cir. 2013) (quoting United States v. Shaw, 560 F.3d 1230,

1237 (11th Cir. 2009)). We consider the fact that a sentence has been imposed

well below the statutory maximum penalty as an indicator of reasonableness. See

United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam). We

will not vacate a sentence unless we possess a “definite and firm conviction that

the district court committed a clear error of judgment in weighing the § 3553(a)

factors by arriving at a sentence that lies outside the range of reasonable sentences

dictated by the facts of the case.” Irey, 612 F.3d at 1190 (quoting Pugh, 515 F.3d

at 1191).

III. Discussion

Willoughby fails to demonstrate that her 113-month, 17-day sentence is

substantively unreasonable under the circumstances. Willoughby contends that the

district court (1) relied on an arbitrary “formula” by sentencing her based on the

length of time that she absconded; (2) unreasonably relied on abscondence to the

exclusion of all other § 3553(a) factors; and (3) gave inadequate consideration to

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the guidelines range, especially the fact that the obstruction-of-justice enhancement

had already accounted for her abscondence. After a careful review of the

proceedings below, we affirm her sentence.

First, the district court did not rely on an arbitrary formula. At the

sentencing hearing, after making findings on the applicable guideline range and

hearing arguments from the government and Willoughby’s attorney, the district

court discussed at length its sentencing rationale. The district court noted the

significance of Willoughby’s extensive criminal history,9 the fact that she had

absconded, the fact that she had continued in fraudulent behavior while she was

absconding, the severity of the crime, the impact on her victims, her lack of

remorse, her likelihood of recidivism, and all of the § 3553(a) factors. The district

court also considered her age, health, and traumatic upbringing as mitigating

factors, but stated that the court was “not as sympathetic to [her] plight” as her

attorney, the government, or the probation office. In light of the district court’s

consideration of all of these factors, its pronouncement of a sentence whose length

was “exactly the amount of time [Willoughby] absconded” cannot be said to be

arbitrary. To be sure, this statement demonstrates that the district court accorded

9 The district court stated: “I don’t say this very often, but I don’t remember ever seeing a worse criminal history than this one. From the age of 32 to 57 she was arrested 77 times, producing 39 criminal convictions, every single one the same thing, fraudulent behavior, theft, writing bad checks, organized scheme to defraud, grand theft, over and over and over again. She has 19 different aliases on this presentence investigation report.” 6 Case: 19-12599 Date Filed: 03/18/2020 Page: 7 of 8

particular weight to the duration Willoughby absconded. But in light of the district

court’s full consideration of all relevant factors, Willoughby cannot show that the

district court abused its discretion in doing so. See Overstreet, 713 F.3d at 634,

638–39 (rejecting a reasonableness challenge to a 420-month sentence for

possessing a firearm as a felon where the district court gave particular weight to

evidence showing the defendant had committed murder). This is especially true

here, where the district court noted that she had continued engaging in fraudulent

behavior during the time she was absconding.

Second, the district court did not use the length of her abscondence “to the

exclusion of all other statutory factors” as the “measure of her culpability.”

Willoughby asserts that, “pursuant to the district court’s formula, had Ms.

Willoughby absconded to Tennessee for 4.5 years instead of 9 years, a sentence of

56 months instead of 113 months would have been imposed.” This logic commits

a causal fallacy by assuming that the district court considered the length of

Willoughby’s abscondence to be the only measure of her culpability, an assertion

which is belied by the district court’s extensive discussion of numerous other

factors in its assessment of her culpability for sentencing purposes.

Finally, by independently considering other factors contributing to

Willoughby’s culpability, the district court did not abuse its discretion by finding

the guidelines range inadequate. Nor did the fact that the guidelines range had

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accounted for her abscondence in its obstruction-of-justice enhancement constrain

the district court from according a different degree of weight to that factor under

the circumstances—the Guidelines, after all, are advisory. See United States v.

Massey, 443 F.3d 814, 818 (11th Cir. 2006) (acknowledging that the Sentencing

Guidelines are advisory) (citing United States v. Booker, 543 U.S. 220 (2005));

Overstreet, 713 F.3d at 638. Furthermore, as yet another indicator of

reasonableness, Willoughby’s 113-month sentence was well below the 25-year

statutory maximum. See Gonzalez, 550 F.3d at 1324 (considering as an indicator

of reasonableness the fact that the defendant’s 50-month sentence was well below

the 10-year statutory maximum).

Accordingly, we find that the district court did not abuse its discretion by the

manner in which it considered Willoughby’s abscondence as one factor

contributing to her sentence, and thus we find her sentence to be substantively

reasonable.

AFFIRMED.