Filed: Sep. 11, 2015
Latest Update: Mar. 02, 2020
Summary: Circuit Judges.sentence on the fraud counts.sentencing guideline calculation.1 Although Conley's plea agreement contained a waiver-of-, appeal clause, Conley only waived her right to appeal a sentence, that did not exceed thirty-three months.United States v. King, 741 F.3d 305, 308 (1st Cir.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1874
UNITED STATES OF AMERICA,
Appellee,
v.
SHARON CONLEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Sarah A. Churchill and Nichols & Webb, P.A. on brief for
appellant.
Renée M. Bunker, Assistant United States Attorney, and Thomas
E. Delahanty II, United States Attorney, on brief for appellee.
September 11, 2015
THOMPSON, Circuit Judge. Defendant-Appellant Sharon
Conley ("Conley") pleaded guilty to one count of wire fraud, one
count of mail fraud, one count of social security fraud, and one
count of aggravated identity theft arising out of her fraudulent
use of several credit cards.1 The district court sentenced Conley
to thirty-six months' imprisonment, twelve months on the fraud
counts to be served concurrently and a mandatory consecutive
twenty-four months on the aggravated identity theft charge,
followed by three years' supervised release.2 On appeal, Conley
challenges only the substantive reasonableness of her twelve month
sentence on the fraud counts. Conley does not challenge the
procedural reasonableness of her sentence, including the
sentencing guideline calculation. For the reasons that follow, we
affirm the district court.
We review challenges to the reasonableness of a sentence
for abuse of discretion.3 Gall v. United States, 522 U.S. 38, 46
1 Although Conley's plea agreement contained a waiver-of-
appeal clause, Conley only waived her right to appeal a sentence
that did not exceed thirty-three months. Given the thirty-six
month sentence imposed, Conley's waiver does not apply.
2 Because this appeal follows a guilty plea, we draw the facts
from the change-of-plea colloquy, the Presentence Investigation
Report, and the transcript of the sentencing hearing. United
States v. Cintrón-Echautegui, 604 F.3d 1, 2 (1st Cir. 2010).
3 Conley does not appear to have preserved a substantive
reasonableness challenge below. As such, the applicable standard
of review is somewhat unclear. Most circuits "have found that an
objection in the district court is not required to preserve a claim
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(2007). "Challenging a sentence as substantively unreasonable is
a burdensome task in any case, and one that is even more burdensome
where, as here, the challenged sentence is within a properly
calculated [Guidelines Sentencing Range]." United States v.
Clogston, 662 F.3d 588, 592-93 (1st Cir. 2011). The "linchpin" of
a substantively reasonable sentence is whether the court's
sentencing rationale was "plausible" and the result "defensible."
United States v. King,
741 F.3d 305, 308 (1st Cir. 2014) (citation
omitted). "Consequently, we limit our review to the question of
whether the sentence, in light of the totality of the
circumstances, resides within the expansive universe of reasonable
sentences."
Id.
Conley's lone argument is that the district court failed
to properly consider her history of mental illness and prior sexual
and mental abuse. The record belies this contention. The district
court recited the relevant statutory sentencing factors, including
"the particular history and characteristics of the defendant," and
adopted the facts set out in the Presentence Investigation Report
that the duration of a sentence is substantively unreasonable . .
. [t]his court, however, has held, albeit without analysis, that
a failure to interpose an objection in the district court to the
substantive reasonableness of a sentence begets plain error
review." United States v. Ruiz-Huertas,
792 F.3d 223, 228 (1st
Cir. 2015) (internal citations omitted). Here, though, we need
not decide the issue. Even if we assume, favorably to Conley,
that the abuse of discretion standard applies, a proposition that
the government does not dispute, Conley's challenge nevertheless
fails.
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("PSR"), which detailed Conley's past trauma and mental health
issues. Moreover, defense counsel highlighted relevant portions
of the PSR at sentencing, detailing the "sexual, emotional and
physical trauma" Conley suffered, and argued that given Conley's
"mental health history" she should be allowed to self-surrender to
allow for the designation of an appropriate Bureau of Prisons
("BOP") facility. Apparently responsive to defense counsel's
arguments, the court recommended that Conley be designated to a
BOP facility capable of addressing Conley's "serious mental health
needs," and further ordered mental-health treatment as a condition
of her supervised release.
In essence, Conley complains that the district court
should have weighed the statutory factors differently, placing
more weight on particular mitigating factors to grant a downward
variance. The district court offered sufficiently compelling
reasons to justify the sentence, however, highlighting the need
for a just punishment, to promote respect for law and deterrence,
and to avoid unnecessary sentencing disparity. "That the court
chose to attach less significance to certain mitigating
circumstances than [Conley] thinks they deserved does not make
[her] sentence substantively unreasonable." United States v.
Colón–Rodríguez, 696 F.3d 102, 108 (1st Cir. 2012).
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Conley has failed to show that the sentencing court's
bottom-of-the-guideline range sentence was unreasonable. For the
reasons made plain above, we uphold Conley's sentence.
Affirmed.
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