United States v. Miriam M. Short

597 F.2d 1122, 1979 U.S. App. LEXIS 15086

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 30, 1979
• Docket: 78-1283
• Status: Published

Opinions

ROSS, Circuit Judge.

Miriam M. Short was convicted upon a plea of guilty to one count of devising a scheme to defraud the Department of Public Health and Welfare of the State of Missouri by means of fraudulent misrepresentations, in violation of 18 U.S.C. § 1341.¹ Seven other counts were dismissed pursuant to a plea bargain. She was sentenced to imprisonment for a period of three years, She now appeals from the district court’s denial of her motion to reduce sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. We affirm.

Short pleaded before the district court for .a lenient sentence, citing inter alia the following factors:

a) she was a first offender;

b) she was supporting four of her children, the youngest of whom was ten years old;

c) she was truly remorseful and offered to make restitution;

d) as a result of the criminal proceeding, one of her children had become ill with a peptic ulcer and needed her presence; and

e) she had been induced to commit the crime by a combination of financial and emotional pressures occurring simultaneously.

The district court rejected Short’s plea for a more lenient sentence, allegedly in large part on the basis of information that, after her conviction, Short submitted a false college transcript to the probation officer in connection with her presentence investigation.² She also told the court at her first arraignment: “I graduated, I have a degree in social work.” Short alleges that her sentence was based largely on this one negative factor, and that the district court did not properly consider the circumstances favorable to a more lenient sentence.³

We have reviewed the transcripts of the sentencing proceeding and the proceedings on the motion to reduce sentence and conclude that the district court weighed all factors presented to it, including those supporting a lenient sentence and Short’s explanation for submitting the forged transcript. In the exercise of its discretion, the court made a decision unfavorable to Short. We will not disturb that exercise of discretion on appeal.⁴

The information that Short presented a forged college transcript to the probation officer is clearly within the proper realm of inquiry in a sentencing proceeding. See United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); Orner v. United States, 578 F.2d 1276, 1278-79 (8th Cir. 1978); United States v. Durbin, 542 F.2d 486, 489 (8th Cir. 1976); 18 U.S.C. § 3577. Furthermore, Short does not allege that the information was false, or that she was not given an opportunity to explain the reason she submitted the transcript. In sum, she has made no “clear and convincing case of abuse of discretion on the part of the sentencing judge.” Orner v. United States, supra, 578 F.2d at 1280.

Short also contends that the sentence was grossly excessive and manifestly disproportionate to the crime and the character of the criminal. To support her contention, she cites four other welfare fraud cases decided in a 27 month period in the Eastern District of Missouri. In those four cases, the sentences imposed were more lenient.

Short’s contention is without merit. Her three year sentence is well within the five year maximum. The sentences imposed in four other cases for different offenses and with respect to different offenders have no relevance on the facts of this case to Short’s sentence. Cf. Woosley v. United States, 478 F.2d 139, 146-48 (8th Cir. 1973) (review of a maximum sentence so irrationally disproportionate to typical sentences for the offense as to shock the judicial conscience.)

Finally, Short argues that the sentence was impermissibly based in part on a letter written by a Mr. Williams of the Coalition of Black Trade Unionists; the letter was critical of the probation office. We disagree. The district judge made it clear in commenting on the letter, that while in his opinion it was not the function of Mr. Williams to interfere with the operation of the probation office, the court’s decision was not based upon a negative reaction to the letter. We are convinced that the sentence was not affected by improper consideration of Williams’ letter.

Judgment affirmed.

1 . This is not a case where the defendant merely neglected to notify the authorities that she had gone back to work. The facts of the crime are set forth in the probation report as follows:

OFFICIAL VERSION OF OFFENSE

On August 16, 1972, Miriam M. Short initially applied for Aid to Dependent Children. Subsequently, on September 5, 1972, she was employed by the Hpman Development Corporation. Her application was validated by the Welfare worker on September 20, 1972, but at that time defendant failed to indicate employment. On approximately nine separate occasions, between October, 1972, and April, 1976, defendant reapplied for Aid to Dependent Children and food stamps and her case was reviewed by the Welfare worker.

On each of the occasions, defendant did not show any employment, although she was employed throughout this period. On September 17, 1975, during her regular review, Short signed a form acknowledging that it was against the law not to report any change of family income or circumstances. In September, 1976, Short reported other income to the Welfare Office, signed a notification of the Fraud Provisions, and her ADC case was closed at her own request.

Between November, 1972, and October, 1976, defendant received $9,751.00 in Aid to Dependent Children, $8,026.00 in food stamps and $724.10 in Medicaid. Although she was not entitled to any of these benefits, the Medicaid amount was not included in the Indictment, making a total of $17,777.00 received fraudulently by the defendant in ADC and food stamp payments. (Emphasis supplied.)

Not only did she continue to misrepresent her employment status, knowing it to be a violation of the law, she drew over $17,000.00 in ADC and food stamps during the almost four years her fraudulent representations continued. The defendant did not deny these facts and the record does not indicate that any of this sum has been repaid. During part of the time the fraud continued and thereafter she lived in a $450.00 a month townhouse.

2 . The dissent, in holding that the trial court abused its discretion, states as follows:

In sum, the record indicates that the false college transcript incident played a decisive role in the district judge’s sentencing decision opting for incarceration rather than probation. Because of his focus on that incident, the judge failed to give due consideration to far more compelling circumstances in the record revealing Ms. Short’s excellent rehabilitative prospects.

This statement infers incorrectly that the district judge abandoned his duty to sentence for the crimes committed but sentenced rather for incidents unrelated thereto. I do not agree with either the dissent or the concurring opinion in this regard.

3 . In addition to the false transcript the probation report reflects that defendant was charged in 1962 with stealing under $50.00 and paid a fine of $20.00 plus costs. The defendant claimed to have no memory of this transaction but did not deny it. Other incidents described in the probation reports concerning the use of a gun, an insufficient fund check and assault were denied by the defendant and there is no indication that the trial judge considered them in determining the sentence. He affirmatively indicated he did not consider the alleged shooting incident.

4 . If the dissent should become the majority opinion of this court, the number of appeals to this court alleging abuse of discretion in the sentencing process would increase dramatically. In my opinion a majority of this court is not willing to second guess the district judges on sentencing matters to the degree advocated by either the dissent or the concurring opinion.