Filed: Jun. 13, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 6-13-2006 USA v. Shusterman Precedential or Non-Precedential: Non-Precedential Docket No. 05-3904 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Shusterman" (2006). 2006 Decisions. Paper 906. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/906 This decision is brought to you for free and open access by the Opinions of the Unite
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 6-13-2006 USA v. Shusterman Precedential or Non-Precedential: Non-Precedential Docket No. 05-3904 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "USA v. Shusterman" (2006). 2006 Decisions. Paper 906. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/906 This decision is brought to you for free and open access by the Opinions of the United..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-13-2006
USA v. Shusterman
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3904
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Shusterman" (2006). 2006 Decisions. Paper 906.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/906
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-3904
____________
UNITED STATES OF AMERICA
v.
BETTY SHUSTERMAN,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02:CR-225-2)
District Judge: Honorable Anita B. Brody
____________
Submitted Under Third Circuit LAR 34.1(a)
June 13, 2006
Before: FISHER, ALDISERT, and LOURIE,* Circuit Judges.
(Filed: June 13, 2006)
____________
OPINION OF THE COURT
____________
*
Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit,
sitting by designation.
LOURIE, Circuit Judge.
Betty Shusterman (“Shusterman”) appeals from the District Court’s decision
sentencing her to 51 months of imprisonment and ordering her to pay $1.3 million in
restitution for conspiracy to commit bank fraud and mail fraud, bank fraud, mail fraud,
tax evasion, and making false statements on income tax returns. Because the District
Court properly made factual findings that were supported by a preponderance of the
evidence that enhanced the term of Shusterman’s sentence, and the sentence was
reasonable, we will affirm.
Shusterman was formerly the bookkeeper for Temple Sinai, a synagogue in
Montgomery County, Pennsylvania. The crimes that Shusterman were convicted of, inter
alia, involved writing checks on the temple’s primary bank account, giving the checks to
Barry Wilf (“Wilf”), her accomplice and co-defendant, and having him deposit the checks
into a secondary Temple Sinai bank account that Wilf actually controlled, after which he
withdrew the funds for their personal use. In addition, Shusterman and Wilf engaged in
fraudulent bookkeeping in order to conceal their scheme, viz., entering false explanations
for the checks issued from the temple’s primary account and deposited into the secondary
account. Shusterman and Wilf were also accused of taking donations to the temple and
directly depositing them into the secondary account. Shusterman was also accused of
taking “retirement” payments from the temple’s operating account in addition to her
regular salary even though she was not entitled to any retirement or pension from the
temple.
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On April 11, 2002, Shusterman was indicted for her part in the alleged scheme to
defraud Temple Sinai and the federally insured banks that were involved. Shusterman
was also charged with evading personal federal income taxes. On September 30, 2003, a
jury returned a guilty verdict on all 46 counts presented against her, consisting of
conspiracy to commit bank fraud and mail fraud (one count), bank fraud (one count), mail
fraud (34 counts), tax evasion (five counts), and making false statements on income tax
returns (five counts).
On May 25, 2004, the District Court sentenced Shusterman to 51 months of
imprisonment and ordered her to pay $1.3 million in restitution. In reaching that
sentence, the Court determined that Shusterman’s base offense level for fraud was 6,
which was increased by 11 levels because of a loss of between $800,000 and $1.5 million.
The Court further enhanced Shusterman’s offense level by 2 levels because more than
minimal planning was involved in carrying out the crimes, another 2 levels because the
offense involved a religious organization, and another 2 levels for abuse of trust.
Combined with her tax-related offenses, the Court determined that Shusterman’s final
total offense level was 24. As a defendant with a criminal history in category I, the
sentencing range for Shusterman’s offenses under the United States Sentencing
Guidelines (“Guidelines”) is 51-63 months.
Shusterman appealed her sentence and, following the United States Supreme
Court’s decision in United States v. Booker, 543 U.S. 220 (2005), this Court remanded
for resentencing. On August 12, 2005, after conducting a second sentencing hearing, the
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District Court reimposed the same sentence of 51 years imprisonment, a term of
supervised release of five years, restitution in the amount of $1.3 million, and a special
ssessment of $4,600. Shusterman timely appealed her sentence, and we have jurisdiction
pursuant to 18 U.S.C. § 3742(a).
On appeal, Shusterman does not challenge the sufficiency of the jury’s guilty
verdict. Nor does she dispute that the District Court’s factual findings leading to
enhancement of her prison sentence were supported by a preponderance of the evidence.
Rather, she assigns error to the Court for engaging in any fact finding at all to enhance her
prison sentence, which she asserts should have been made by a jury beyond a reasonable
doubt, viz., the amount of loss caused by the fraud, whether she engaged in more than
minimal planning, and whether she abused a trust. According to Shusterman, the Court’s
factual findings violated her Sixth Amendment rights. Shusterman contends that the
Court should have presented those factual questions to a jury in the form of special
interrogatories.
We agree with the government that a sentencing court may make factual findings
supported by a preponderance of the evidence relevant to sentencing enhancements, as
the District Court did here. In United States v. Miller, 417 F.3d 358, 362 (3d Cir. 2004),
we noted that the district court in that case, as here, engaged in “a fair amount of judicial
fact finding” in enhancing the defendant’s prison sentence. Nonetheless, we determined
that there was no legal error in the sentencing court’s fact finding, so long as, inter alia,
the court recognized that the Guidelines were advisory rather than mandatory, pursuant to
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United States v. Booker, 543 U.S. 220 (2005).
Miller, 417 F.3d at 362-63; see also
United States v. Cooper,
437 F.3d 324, 330 (3d Cir. 2006) (stating “[a]s before Booker,
the standard of proof under the guidelines for sentencing facts continues to be
preponderance of the evidence”). Thus, the District Court did not violate Shusterman’s
Sixth Amendment rights by not specifically submitting the enhancement factors for
consideration by a jury. Shusterman does not otherwise contend that the District Court
erred in its consideration of the Guidelines or the sentencing factors under 18 U.S.C.
§ 3553(a).
Accordingly, we will affirm the District Court’s decision sentencing Shusterman to
51 months of imprisonment, a term of supervised release of five years, restitution in the
amount of $1.3 million, and a special assessment of $4,600.
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