Filed: Mar. 08, 2011
Latest Update: Feb. 22, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-2420 _ UNITED STATES OF AMERICA v. CATHERINE L. BRADICA, Appellant _ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. Action No. 06-07) District Judge: Honorable Gary L. Lancaster, Chief Judge _ Submitted Under Third Circuit LAR 34.1(a) December 16, 2010 _ Before: SLOVITER, GREENAWAY, JR., and GREENBERG, Circuit Judges (Opinion File: March 8, 2011) _ OPINION _ GREENAWAY
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-2420 _ UNITED STATES OF AMERICA v. CATHERINE L. BRADICA, Appellant _ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. Action No. 06-07) District Judge: Honorable Gary L. Lancaster, Chief Judge _ Submitted Under Third Circuit LAR 34.1(a) December 16, 2010 _ Before: SLOVITER, GREENAWAY, JR., and GREENBERG, Circuit Judges (Opinion File: March 8, 2011) _ OPINION _ GREENAWAY,..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-2420
_____________
UNITED STATES OF AMERICA
v.
CATHERINE L. BRADICA,
Appellant
_______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. Action No. 06-07)
District Judge: Honorable Gary L. Lancaster, Chief Judge
_______________
Submitted Under Third Circuit LAR 34.1(a)
December 16, 2010
_______________
Before: SLOVITER, GREENAWAY, JR., and GREENBERG, Circuit Judges
(Opinion File: March 8, 2011)
_______________
OPINION
________________
GREENAWAY, JR., Circuit Judge
Appellant Catherine Bradica (“Bradica”) appeals the District Court’s judgment,
entered on April 27, 2009. Bradica was charged in a 39 count indictment, with multiple
counts of fraud and conspiracy.1 On February 21, 2008, Bradica pled guilty, without the
benefit of a plea agreement, to Counts 5-15, 22-27, 28-36, 38, and 39. The District Court
granted the Government’s motion to sever the counts to which Bradica pled guilty from
the remaining counts of the indictment. The District Court dismissed the remaining
Counts 1-4, 16-21 and 37 on January 30, 2009.
The District Court sentenced Bradica to concurrent 41-month terms of
imprisonment for each of the counts of conviction. Bradica timely appeals the sentence.
For the following reasons, we will affirm the District Court’s Judgment.
I. BACKGROUND
We write primarily for the benefit of the parties. We shall recount only the
essential facts. Catherine Bradica (“Bradica”) was employed by Capco Contracting
(“Capco”), a privately held corporation in McKeesport, Pennsylvania.2 Bradica was the
Controller, second in charge, and oversaw Capco’s financial, payroll, and accounting
operations, including the issuance of expense checks.
The indictment alleged wrongdoing in three different Capco construction projects:
the PNC Park baseball stadium in Pittsburgh; the Petersen Events Center at the
University of Pittsburgh; and the reconstruction of the Pentagon in Washington, D.C.,
1
Counts 1 through 27 charged mail fraud, in violation of 18 U.S.C. § 1341. Counts 28
through 36 charged major fraud against the United States, in violation of 18 U.S.C. §
1031. Counts 37 and 38 charged conspiracy, in violation of 18 U.S.C. § 371 and Count
39 charged tax conspiracy, in violation of 18 U.S.C. § 371.
2
Capco entered into subcontracts with prime contractors to perform commercial painting
and dry walling.
2
following the September 11, 2001 terrorist attacks (the Pentagon Renovation Program, or
PENREN). Capco subcontracted to perform the following tasks: (1) prime, paint, and
touch-up the steel designated for installation in the baseball stadium; (2) provide
personnel, equipment, and material to perform touch-up painting on the construction of
the Peterson Events Center; and (3) provide assistance to AMEC Construction
Management, Inc.3 (“AMEC”) for repairs to the Pentagon.
Three other individuals were also indicted.4 According to the indictment, Bradica
and one of the co-defendants, Thomas Cosar, falsified, and directed other Capco
employees to falsify, the contents of weekly time sheets prepared for work at these three
construction sites. From October 16, 2001 through May 17, 2002, Capco (through
Bradica), submitted 16 requests for payment, with summary invoices, certified payroll
registers, and vendor invoices for materials purchased. The invoices reportedly totaled
approximately $9,921,324.00.5
3
AMEC Construction Management, Inc. is a large-scale construction management
company based in Bethesda, Maryland.
4
The other co-defendants were Thomas Cosar, the president and sole stockholder of
Capco; Daniel Monte, primarily a project manager and painting superintendent for
Capco; and Joseph Arena, employed as a senior project manager for AMEC, which
subcontracted with Capco.
5
This included falsely billed labor hours for people who had not worked at the Pentagon
and did not receive the payment billed; falsely billed labor hours for Capco employees
whose services had been diverted on the dates in question to perform work at other
locations; and inflated hourly rates for certain employees.
3
Bradica admitted her guilt regarding PENREN, but did not admit to involvement
in the PNC Park or Peterson Events Center projects.
Utilizing the 2007 Guidelines Manual, the Pre-sentence Investigation Report
(“PSR”) assigned a base offense level of 6 through application of U.S.S.G. § 2B1.1 and
the grouping rules of U.S.S.G. §§ 3D1.2 and 3D1.4. The PSR then calculated loss under
U.S.S.G. § 2B1.1(b)(1)(I) as $1,120,666.10. This resulted in an additional 16 level
enhancement.6 The PSR found that Bradica abused a position of trust and added an
additional 2 levels, then applied a 2-level reduction for acceptance of responsibility, for
an adjusted total offense level of 22. Bradica received a criminal history category of I.
The resulting Guidelines range was 41 to 51 months of imprisonment. Bradica objected
to the PSR, particularly the calculation of financial loss resulting from her actions (the
“loss calculation”). Not only did Bradica object to the accuracy of the loss calculation,
but she also asked for a downward departure due to an alleged overstatement of loss. She
also requested a variance at sentencing.
On January 27, 2009, the District Court held an evidentiary hearing, in advance of
sentencing. The purpose of the evidentiary hearing was to resolve the amount of loss
and restitution issues. Specifically, the parties disputed whether or not Capco received
payments on all of its invoices. The Government contended that the amount of loss was
6
Pursuant to § 2B1.1(b)(1)(I), the offense level is increased by 16 when the loss exceeds
$1,000,000 but is less than $2,500,000. The total offense level of 22 included losses
related to PENREN, and also included losses related to the PNC Park and the Petersen
Events Center projects.
4
more than $1 million, and that $807,000 of that amount was attributable to the Pentagon
project. Bradica contended that the amount of loss on the Pentagon project was zero.
Based on information provided to the District Court during the evidentiary
hearing, the financial loss to AMEC on the Pentagon project was $153,536 and the loss to
PENREN was approximately $653,624, totaling $807,160. In addition, Capco over-
billed on the PNC Park project by approximately $283,940.95. The Peterson Events
Center at the University of Pittsburgh contracted with Havens Steel Company to erect,
prepare, and paint the structural steel for the facility. Havens issued a purchase order to
Capco, and then Capco fraudulently billed Havens for a total loss of $19,815.43. Capco
also committed tax fraud, resulting in a total employment tax loss of $29,787.73.
After the evidentiary hearing, the District Court issued its Tentative Findings and
Rulings, finding in favor of the Government and supporting the conclusions of the PSR.
The District Court stated that it found the Government’s proof of loss calculation
credible, and determined that it would use the calculated amount in determining
Bradica’s sentence. The District Court also denied Bradica’s request for a downward
departure and a downward variance. Bradica filed a timely appeal.
II. JURISDICTION
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
5
III. STANDARD OF REVIEW
A District Court’s sentencing procedure is reviewed for abuse of discretion. Gall
v. United States, 552 U.S. 38 (2007).7 On abuse of discretion review, the Court of
Appeals gives due deference to the district court’s sentencing decision.
Id. at 52.
IV. ANALYSIS
Bradica has requested both a variance and a downward departure. She contends
that the District Court: (1) overstated the seriousness of the offense because of its
inaccurate loss calculation; (2) committed error by failing to sufficiently consider and
discuss, on the record, its reasons for rejecting her request for a downward departure; (3)
committed procedural error by failing to consider one of the § 3553(a) factors; and (4)
failed to issue a ruling on the downward variance she had requested.
Bradica contends that the District Court violated this Court’s decision in United
States v. Lofink, 564 F.3d 232 (3d Cir. 2009), by denying her request for a downward
departure in its Tentative Findings and Rulings. Bradica contends that the denial of her
request and the alleged Lofink violation warrant reversal. (Appellant’s Br. at 38.)
7
The Government contends that the standard of review is plain error, because Bradica
did not object at the sentencing hearing. See United States v. Lloyd,
469 F.3d 319, 321
(3d Cir. 2006) (since the appellant did not object to the sentence, we review for plain
error). However, we find that Bradica did object. In fact, Bradica objected at the
evidentiary hearing before the Court released its Tentative Findings and Rulings (J. App.
Vol. II 282), and in her sentencing memorandum. (J. App. Vol. III 483.) In addition, the
District Court acknowledged that Bradica’s objections were preserved for appellate
review. (J. App. Vol. III 511.)
6
Downward Departure
A downward departure occurs when the sentence calculated, after granting a
departure motion, is less than the bottom of the applicable Guidelines range. United
States v. Vazquez-Lebron, 582 F.3d 443, 445 (3d Cir. 2009).
After the Supreme Court’s decision in United States v. Booker, 543 U.S. 220
(2005), sentencing Guidelines were no longer deemed mandatory, instead they were
deemed advisory. Since Booker, district courts have been provided with a three-step
process for incorporating adequate consideration of the Guidelines into their sentencing
procedures: (1) courts must calculate a defendant’s Guidelines sentence precisely as they
would have before Booker; (2) they must formally rule on the motions of both parties and
state on the record whether they are granting a departure and how that departure affects
the Guidelines calculation, and take into account the court’s pre-Booker case law, which
continues to have advisory force; and (3) courts are required to exercise their discretion
by considering the relevant 18 U.S.C. § 3553(a) factors in setting the sentence they
impose regardless of whether it varies from the sentence calculated under the Guidelines.
United States v. Gunter,
462 F.3d 237, 247 (3d Cir. 2006).
7
Variance8
A variance is based on the district court’s consideration of the 18 U.S.C. § 3553(a)
factors.9 If granted, a variance results in a sentence that diverges from the original
guidelines calculation.
At step 2 above, the district court decides whether a departure is warranted. At
step 3, the district court determines whether a variance, after consideration of the §
3553(a) factors, is warranted. In United States v. Gall, 552 U.S. 38 (2007), the first and
third steps were reinforced, and the Supreme Court clarified that a district court must
consider all of the § 3553(a) factors. However, because the issue in Gall addressed a
8
Bradica requested a downward variance on the same grounds upon which she had
requested a downward departure, namely, that the loss calculation overstated the
seriousness of the offense.
9
The § 3553(a) factors include: (1) the nature and circumstances of
the offense and the history and characteristics of the defendant; (2)
the need for the sentence imposed - - (A) to reflect the seriousness of
the offense, to promote respect for the law, and to provide just
punishment for the offense; (B) to afford adequate deterrence to
criminal conduct; (C) to protect the public from further crimes of the
defendant: and (D) to provide the defendant with needed educational
or vocational training, medical care, or other correctional treatment
in the most effective manner; (3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for - -
(A) the applicable category of offense committed by the applicable
category of defendant as set forth in the guidelines . . . ; (5) any
pertinent policy statement . . . issued by the Sentencing Commission
. . . [that] is in effect on the date the defendant is sentenced; (6) the
need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct;
and (7) the need to provide restitution to any victims of the offense.
8
variance, the opinion did not address the second step (granting a departure). In United
States v. Wise, we stated that district courts must engage in the second step of the
sentencing process, ruling on departure motions, and when a sentencing court fails to
expressly rule on the merits of a departure motion, the need to consider all of the §
3553(a) factors is frustrated. 515 F.3d 207, 216 (3d Cir. 2008).
Bradica’s Claim Regarding the Loss Calculation
On February 19, 2008, the Court severed the counts involving PNC Park and the
Peterson Events Center from the counts involving the Pentagon project (PENREN) and
later dismissed the PNC Park and Peterson Events Center counts, with prejudice. Bradica
argues that since she did not plead guilty to the counts corresponding to two of the three
projects, the loss from those projects should not be considered. The District Court did
not consider the loss for the PNC Park or Petersen Events Center projects for purposes of
the Tentative Findings and Rulings. (J. App. Vol. I 4 note 5.)
The PSR contained a calculated amount of loss of $807,161, in connection with
the reconstruction of the Pentagon. Bradica claimed that the amount of loss, as calculated
in the PSR, overstates the seriousness of her conduct and thus warranted both a
downward departure and a downward variance.
To address this contention, the District Court held an evidentiary hearing, allowing
both defendant and the Government to present evidence. The District Court then issued
Tentative Findings and Rulings. Principally, the Court found that the Government’s
witnesses were credible, and that the Government met its burden of showing that Bradica
9
caused a loss of $807,161, in connection with the reconstruction of the Pentagon.
Therefore, Bradica’s claim that the loss calculation overstated the seriousness of her
conduct is not valid. The loss ascribed to the Pentagon was attributable, based on the
evidence, to Bradica.
Bradica’s Request for a Downward Departure
Bradica next contends that the District Court failed to address her motion for a
downward departure. However, in its Tentative Findings and Rulings, the District Court
stated: “We also disagree with defendants that the amount of loss substantially overstates
the seriousness of defendants’ conduct and warrants a downward departure . . .” (J. App.
Vol. I 8 n.6), thereby effectively denying the motion for downward departure. In her
sentencing memorandum, submitted after the Tentative Findings and Rulings, Bradica
again requested a downward departure, along with a downward variance.
In the instant case, we find that the District Court did rule on Bradica’s departure
motion, in its April 2, 2009, Tentative Findings and Rulings. At the sentencing hearing,
the District Judge discussed the Guidelines range and explained how it was calculated.
Next, the District Judge discussed the § 3553 (a) factors in detail, as described in Step 3.
We find no discussion of Step 2 regarding the downward departure motion. Although we
have not required district courts to use the terms, “departure” or “variance,” we have
noted that the use of these terms assists our review. Lofink, 564 F.3d at 239 (quoting
United States v. Jackson,
467 F.3d 834, 837 n.2 (3d Cir. 2006)).
10
Although Bradica contends that this case conflicts with our holding in Lofink, we
find the facts of the two cases distinct. In Bradica’s case, we have been provided with
enough information to determine how the District Court arrived at its sentence. The
District Court considered the applicable Guidelines range at the time of sentencing, and
took all of the § 3553(a) factors into consideration. However, in Lofink, we were unable
to determine whether the Court denied the appellant’s motion because it concluded there
was no basis to grant the motion under §5K2.13 or because the Court exercised its
discretion in not granting the motion. See Lofink, 564 F.3d at 240. We observed that
even though the district court decided that some aspect of the case warranted a sentence
below the original guidelines range, the court never concluded that no reduction was
warranted.
Id.
In Bradica, the District Court stated that “I have heard and considered the evidence
and arguments, and I believe that the commission [sic] of the guidelines has determined
the recommended sentence that is proper in this type of case even though the Guidelines
are not mandatory but merely a recommendation.” (J. App. Vol. III 535.)
The District Court in Bradica’s case stated that “this sentence will adequately
address the sentencing goals of punishment, rehabilitation and deterrence.” Id.
Therefore, although Bradica hinges her argument regarding her entitlement to a
downward departure on what she considers to be the overstated loss calculation, the
11
District Court had already stated that it disagreed with Bradica’s contention that the loss
calculation was over calculated.10
We hold that the District Court considered Bradica’s request for a downward
departure and after a thorough evaluation of the facts, exercised its discretion in deciding
that the evidence presented by Bradica did not warrant a downward departure. As we
have stated, we have no authority to review discretionary denials of departure motions in
calculating sentencing ranges. Jackson, 467 F.3d at 839.
Bradica’s Request for a Downward Variance and Consideration of the § 3553(a) Factors
Bradica also contends that the District Court committed procedural error by failing
to rule explicitly on her request for a downward variance and also by failing to consider,
under § 3553(a)(1), the nature and circumstances of the offense. Bradica argues that both
the Supreme Court and the Third Circuit have stated that the failure to address a
requested basis for variance is reversible error. As such, her sentence must be vacated
and the case remanded for resentencing.11 We disagree.
We have stated that we are guided by the requirement that sentencing courts must
give meaningful consideration to all of the factors in 18 U.S.C. § 3553(a). See United
States v. Olhovsky, 562 F.3d 530, 546 (3d Cir. 2009) (citing United States v. Cooper, 437
10
The District Court conducted a thorough analysis of the loss calculations and stated
that it “disagreed with defendants that the amount of loss substantially overstates the
seriousness of defendant’s conduct . . .” (Appellee’s Br. at 23.)
11
Bradica cites no case law in support of her argument that her sentence must be vacated
and the case remanded.
12
F.3d 324, 329 (3d Cir. 2006)); see also United States v. Grier,
475 F.3d 556, 571 (3d Cir.
2007) (holding that the touchstone of reasonableness is whether the record as a whole
reflects rational and meaningful consideration of those factors.) A district court’s “failure
to consider the § 3553(a) factors” can create a procedurally unreasonable sentence.
United States v. Levinson,
543 F.3d 190, 195 (3d Cir. 2008) (quoting Gall v. United
States,
552 U.S. 38, 51 (2007)).
During the sentencing hearing, the District Court discussed the § 3553(a) factors
in detail. Indeed, the District Judge stated that he took “all relevant factors into account,
especially the loss sustained and the requirement of restitution . . .” (J. App. Vol. III 521-
25.) Although Bradica contends that the District Court failed to address the nature and
circumstances of the offense, we find this statement to be untrue.
The District Court thoroughly discussed the nature and circumstances of the
offense, stating that: “(1) the offense was not violent in nature, but involved a scheme to
defraud the government and private construction companies and trade unions; (2) the
offense was ongoing in nature, as the fraudulent activities began in 2000 and continued
for two years; (3) the offenses were related to a larger pattern of criminal activity,
including elaborate schemes by defendant for false billing on contracts related to
reconstruction of the Pentagon after September 11, 2001, and (4) the victims of the
offense include the U.S. Department of Defense and AMEC Corporation, Dick
Corporation, Barton Malow Company, International Union of Painters and Allied Trade
District Council 57, and Havens Steel.” (J. App. Vol. III 521-23.)
13
We find that the District Court’s analysis of the §3553(a) factors made it clear that
the District Judge listened and considered each of Bradica’s arguments; particularly, the
one she alleges was not discussed, the nature and circumstances of the offense. The
record reflects the District Court’s consideration of each of the § 3553(a) factors in its
decision not to grant a downward variance. Therefore, the District Court did not commit
procedural error, and the decision to deny Bradica’s motion for a downward variance was
procedurally reasonable.
As the Supreme Court held in Gall, a district court must consider all of the §
3553(a) factors. In keeping with that directive, the District Judge here correctly
calculated the applicable Guidelines range and allowed both parties to present arguments
as to what they believed the appropriate sentence should be. More important, the District
Court considered all of the § 3553(a) factors, and documented his analysis of each factor.
(See J. App. Vol. III 521-25.)
Since we find that the sentence was not procedurally unreasonable, the only
question for us to resolve is whether the District Court abused its discretion in
determining that the § 3553(a) factors supported a sentence at the bottom of, rather than
below, the guidelines range. The District Court did not commit a procedural error;
calculated the appropriate U.S. Sentencing Guidelines range; did not treat the Guidelines
as mandatory; considered all of the 18 U.S.C. § 3553(a) factors; and selected a sentence
based on appropriate facts in the record. In addition, the District Court adequately
explained the sentence. Id. Because the District Court did not deviate from the
14
guidelines range, no explanation for any deviation is required. Given the sentence’s
procedural reasonableness, the District Court did not abuse its discretion by denying the
motion seeking a downward variance.
15
IV. CONCLUSION
We find that the District Court addressed Bradica’s request for a downward
departure. Also, we find that the District Court’s refusal to grant the motion for a
downward departure did not transgress our holding in Lofink, and did not constitute
either abuse of discretion or procedural error. Further, we find that the District Court
thoroughly discussed the § 3553(a) factors in denying Bradica’s motion for a downward
variance. The sentence is procedurally reasonable. Reversal is not warranted in this
case.
For these reasons, we will affirm the District Court’s judgment.
16
