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7th Circuit affirms above-guidelines sentence for embezzlement

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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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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

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  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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