UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 13-4775
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
IDA MAE WEATHERS, a/k/a Ida Mae Snipe,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge. (1:11-cr-00428-MJG-5)
Submitted: July 29, 2014 Decided: August 18, 2014
Amended: August 22, 2014
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul R. Kramer, Granger Maher, PAUL R. KRAMER, LLC, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Tamera L. Fine, Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Ida Mae Weathers pled guilty without a written plea
agreement to: conspiracy to commit bank fraud, 18 U.S.C. § 1349
(2012); bank fraud, 18 U.S.C. § 1344 (2012); and aggravated
identity theft, 18 U.S.C. § 1028A(a)(1), (c)(5) (2012). The
charges related to a scheme to defraud various financial
institutions by stealing credit cards from the purses and
wallets of unsuspecting women in public restrooms and then using
those cards to obtain extensions of credit from the institutions
that had issued the cards. According to the presentence
investigation report (PSR), there were over 100 victims of this
conspiracy, which lasted from May 2007 until December 2012.
Weathers received an aggregate sentence of 259 months. She now
appeals, raising four issues. We affirm.
I
At sentencing, the district court found that the
amount of loss was at least $200,000 but less than $400,000.
Weathers contends on appeal that insufficient evidence supports
this finding. We disagree.
Factual findings regarding amount of loss must be
supported by a preponderance of the evidence. United State v.
Miller, 316 F.3d 495, 503 (4th Cir. 2003). “[T]he loss need not
be determined with precision. The court need only make a
reasonable estimate of the loss, given the available
2 information.” Id. “[T]he determination of loss attributable to
a fraud scheme is a factual issue for resolution by the district
court,” reviewable for clear error. United States v.
Allmendinger, 706 F.3d 330, 341 (4th Cir.), cert. denied, 133 S.
Ct. 2747 (2013). The deferential clear error standard warrants
reversal only if we are “left with the definite and firm
conviction that a mistake has been committed.” United States v.
Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (internal quotation
marks omitted).
The Guidelines provide for increasing the base offense
level based upon the greater of actual loss or intended loss.
U.S. Sentencing Guidelines Manual § 2B1.1(b)(1) (2012). We have
endorsed the use of credit limits to determine intended loss.
United States v. Lewis, 312 F. App’x 515, 518 (4th Cir. 2008).
At sentencing, the Government introduced a
spreadsheet, which was created by Detective Marjorie Coyne of
the Baltimore County Police Department. The spreadsheet
identified actual losses exceeding $150,000 and intended losses
(calculated primarily by adding the stolen cards’ credit limits)
of over $400,000. In light of this evidence of intended loss,
the district court’s conservative determination that the amount
of loss was at least $200,000, but less than $400,000, was not
clearly erroneous.
3 II
Weathers next claims that the evidence does not
support a four-level increase of her offense level based on her
role as a leader or organizer of the offense. See USSG § 3B1.1.
We review the district court’s finding as to role in the offense
for clear error. See U.S. v. Thorson, 633 F.3d 312, 317 (4th
Cir. 2011). Testimony at sentencing demonstrated that it was
Weathers who decided both who could join the conspiracy and when
and where the thefts and related credit card fraud would occur.
Additionally, Weathers stole virtually all of the wallets and
credit cards while her confederates distracted the victims and
acted as lookouts, and it was she who distributed the cards to
her cohorts after instructing them how the cards were to be
used. Clearly, the enhancement was proper.
III
Weathers claims that the district court erred when it
did not award her a two-level reduction based on her acceptance
of responsibility. See USSG § 3E1.1(a). We review this
decision for clear error. See United States v. Dugger, 485 F.3d
236, 239 (4th Cir. 2007). Entry of a guilty plea does not,
“standing alone,” earn a defendant a reduction for acceptance of
responsibility. Id. Among the factors that are relevant to
whether to grant the adjustment is “the timeliness of the
4 defendant’s conduct in manifesting the acceptance of
responsibility.” USSG § 3E1.1, cmt. (n.1(H)).
Weathers’ plea, which she entered after nearly a full
day of jury selection had taken place and just before final jury
selection, was hardly timely. By this point, the Government had
spent a great amount of time and resources preparing for trial.
In light of the last-minute decision to enter a plea, we find no
clear error in the denial of the two-level adjustment.
IV
At sentencing, the district court found that Weathers’
total offense level was 28, and her criminal history category
was VI, for a Guidelines range on the conspiracy and bank fraud
counts of 140-175 months. The court determined that an upward
variance was warranted, especially in light of the nature of the
offenses and Weathers’ extensive criminal history. The court
significantly varied from the Guidelines range, sentencing
Weathers to 235 months for those crimes and twenty-four months,
consecutive, for aggravated identify theft. Weathers contends
that the variance was unwarranted.
We review Weathers’ sentence “under a deferential
abuse-of-discretion standard.” See United States v. King, 673
F.3d 274, 283 (4th Cir. 2012). When the district court imposes
a departure or variance sentence, we address “whether the
sentencing court acted reasonably both with respect to its
5 decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). The district court “has flexibility in fashioning a
sentence outside of the Guidelines range,” and need only “‘set
forth enough to satisfy [us] that [it] has considered the
parties’ arguments and has a reasoned basis’” for its decision.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 13-4775
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
IDA MAE WEATHERS, a/k/a Ida Mae Snipe,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge. (1:11-cr-00428-MJG-5)
Submitted: July 29, 2014 Decided: August 18, 2014
Amended: August 22, 2014
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul R. Kramer, Granger Maher, PAUL R. KRAMER, LLC, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Tamera L. Fine, Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Ida Mae Weathers pled guilty without a written plea
agreement to: conspiracy to commit bank fraud, 18 U.S.C. § 1349
(2012); bank fraud, 18 U.S.C. § 1344 (2012); and aggravated
identity theft, 18 U.S.C. § 1028A(a)(1), (c)(5) (2012). The
charges related to a scheme to defraud various financial
institutions by stealing credit cards from the purses and
wallets of unsuspecting women in public restrooms and then using
those cards to obtain extensions of credit from the institutions
that had issued the cards. According to the presentence
investigation report (PSR), there were over 100 victims of this
conspiracy, which lasted from May 2007 until December 2012.
Weathers received an aggregate sentence of 259 months. She now
appeals, raising four issues. We affirm.
I
At sentencing, the district court found that the
amount of loss was at least $200,000 but less than $400,000.
Weathers contends on appeal that insufficient evidence supports
this finding. We disagree.
Factual findings regarding amount of loss must be
supported by a preponderance of the evidence. United State v.
Miller, 316 F.3d 495, 503 (4th Cir. 2003). “[T]he loss need not
be determined with precision. The court need only make a
reasonable estimate of the loss, given the available
2 information.” Id. “[T]he determination of loss attributable to
a fraud scheme is a factual issue for resolution by the district
court,” reviewable for clear error. United States v.
Allmendinger, 706 F.3d 330, 341 (4th Cir.), cert. denied, 133 S.
Ct. 2747 (2013). The deferential clear error standard warrants
reversal only if we are “left with the definite and firm
conviction that a mistake has been committed.” United States v.
Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (internal quotation
marks omitted).
The Guidelines provide for increasing the base offense
level based upon the greater of actual loss or intended loss.
U.S. Sentencing Guidelines Manual § 2B1.1(b)(1) (2012). We have
endorsed the use of credit limits to determine intended loss.
United States v. Lewis, 312 F. App’x 515, 518 (4th Cir. 2008).
At sentencing, the Government introduced a
spreadsheet, which was created by Detective Marjorie Coyne of
the Baltimore County Police Department. The spreadsheet
identified actual losses exceeding $150,000 and intended losses
(calculated primarily by adding the stolen cards’ credit limits)
of over $400,000. In light of this evidence of intended loss,
the district court’s conservative determination that the amount
of loss was at least $200,000, but less than $400,000, was not
clearly erroneous.
3 II
Weathers next claims that the evidence does not
support a four-level increase of her offense level based on her
role as a leader or organizer of the offense. See USSG § 3B1.1.
We review the district court’s finding as to role in the offense
for clear error. See U.S. v. Thorson, 633 F.3d 312, 317 (4th
Cir. 2011). Testimony at sentencing demonstrated that it was
Weathers who decided both who could join the conspiracy and when
and where the thefts and related credit card fraud would occur.
Additionally, Weathers stole virtually all of the wallets and
credit cards while her confederates distracted the victims and
acted as lookouts, and it was she who distributed the cards to
her cohorts after instructing them how the cards were to be
used. Clearly, the enhancement was proper.
III
Weathers claims that the district court erred when it
did not award her a two-level reduction based on her acceptance
of responsibility. See USSG § 3E1.1(a). We review this
decision for clear error. See United States v. Dugger, 485 F.3d
236, 239 (4th Cir. 2007). Entry of a guilty plea does not,
“standing alone,” earn a defendant a reduction for acceptance of
responsibility. Id. Among the factors that are relevant to
whether to grant the adjustment is “the timeliness of the
4 defendant’s conduct in manifesting the acceptance of
responsibility.” USSG § 3E1.1, cmt. (n.1(H)).
Weathers’ plea, which she entered after nearly a full
day of jury selection had taken place and just before final jury
selection, was hardly timely. By this point, the Government had
spent a great amount of time and resources preparing for trial.
In light of the last-minute decision to enter a plea, we find no
clear error in the denial of the two-level adjustment.
IV
At sentencing, the district court found that Weathers’
total offense level was 28, and her criminal history category
was VI, for a Guidelines range on the conspiracy and bank fraud
counts of 140-175 months. The court determined that an upward
variance was warranted, especially in light of the nature of the
offenses and Weathers’ extensive criminal history. The court
significantly varied from the Guidelines range, sentencing
Weathers to 235 months for those crimes and twenty-four months,
consecutive, for aggravated identify theft. Weathers contends
that the variance was unwarranted.
We review Weathers’ sentence “under a deferential
abuse-of-discretion standard.” See United States v. King, 673
F.3d 274, 283 (4th Cir. 2012). When the district court imposes
a departure or variance sentence, we address “whether the
sentencing court acted reasonably both with respect to its
5 decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). The district court “has flexibility in fashioning a
sentence outside of the Guidelines range,” and need only “‘set
forth enough to satisfy [us] that [it] has considered the
parties’ arguments and has a reasoned basis’” for its decision.
United States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir.
2011) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)).
We hold that the district court fulfilled its
obligation under Diosdado-Star. The court imposed the variance
based primarily on the nature of the offense and Weathers’
extensive criminal history. * With respect to the offense, the
district court spoke of its “incredible range and continuous
professional program of criminal activity” as well as its impact
on victims. The court stated that there was a need to protect
the public from Weathers, who previously had committed numerous
offenses using a similar modus operandi.
* Weathers had 32 criminal history points; only 13 points are required to qualify for category VI. Weathers’ criminal history, which dates back at least to age eighteen, includes multiple convictions—primarily for theft and credit card fraud. The modus operandi used in the subject thefts dates back at least to 1994.
6 V
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before us and argument would not significantly
aid the decisional process.
AFFIRMED