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7th Circuit affirms above-guidelines sentence for embezzlement

October 14, 2013

A man’s 60-month sentence for stealing from his employer for many years – a sentence beyond the advisory guidelines range – is reasonable, the 7th Circuit Court of Appeals ruled Friday. The man challenged the District Court’s recalculation of his guidelines range after he appealed his sentence.

In United States of America v. Richard Brown, 12-3313, Chief Judge Richard Young in the Southern District of Indiana, after considering the sentencing factors listed in 18 U.S.C. Section 3553(a), decided to sentence Richard Brown above the guidelines of 21 to 27 months based on the extensive nature of his crimes. Brown worked as the office manager and accountant for a cluster of small businesses owned by the Walker family when it was discovered in 2009 that he had been embezzling from the company for years, putting the businesses in financial straights and destroying the Walker family’s credit.

Brown was indicted on more than 150 counts of wire fraud, mail fraud and tax fraud. He pleaded guilty to a single count of each.

Brown appealed four days after sentencing. Three weeks later, Young issued an amended judgment and attached statement of reasons explaining the sentence. In that statement, Young recalculated Brown’s guidelines range, but kept the original sentence.

Brown claimed the District Court violated Rule 32(h) by not giving notice before applying “departures” to recalculate the guidelines range. The 7th Circuit affirmed.

“Accordingly, if there was error below, it was not the district court’s failure to give notice under Rule 32(h), it was the court’s effort to recalculate Brown’s guidelines range after the notice of appeal was filed. At the sentencing hearing, the district court correctly calculated the guidelines range and then varied upwardly based on the § 3553(a) factors, explaining why the sentence was appropriate. The court’s post-appeal statement of reasons needlessly introduced complication,” Judge Diane Sykes wrote.

She pointed out the real issue with the court’s recalculation is that it lacked the power to amend because the case is now before the 7th Circuit on appeal.
 
“Even if we construed the recalculated range as a nonsubstantive change in the rationale for the sentence — after all, the 60-month sentence was unaffected — the judge’s written explanation is plainly at odds with his oral statement from the bench. In cases of conflict between the written and oral pronouncement of sentence, the oral pronouncement controls,” the court held.
 

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