LIVINGSTON, Circuit Judge:
Defendant-Appellant Melissa Wagner-Dano ("Wagner-Dano") appeals from a judgment of the United States District Court for the Northern District of New York (Norman A. Mordue, Chief Judge), entered October 26, 2010, convicting Wagner-Dano, upon her guilty plea, of wire fraud in violation of 18 U.S.C. § 1343, and sentencing her principally to 78 months' imprisonment. Wagner-Dano argues that her sentence is both procedurally defective and substantively unreasonable. She argues that the district court procedurally erred by: (1) inadequately considering the 18 U.S.C. § 3553(a) sentencing factors; and (2) neglecting to address several of her objections to the Presentence Investigation Report ("PSR"), allegedly in violation of Federal Rule of Criminal Procedure 32(i)(3)(B). We hold that because Wagner-Dano did not raise either procedural objection before the district court, our review of both procedural arguments is restricted to plain error. We further conclude that neither alleged procedural defect amounts to plain error. Because we also conclude that the sentence imposed by the district court is substantively reasonable, we affirm the judgment of the district court.
Melissa Wagner-Dano, a thirty-three-year-old married mother of two, was employed as a bookkeeper by: (1) the Town of Lewis, New York, a small community of
From January 2007 through December 2009, Wagner-Dano stole $1,169,717.74 from her employers through unauthorized withdrawals from their bank accounts by means of wire transfers, Internet accounts, fictitious payroll accounts, and checks payable to herself. She transferred funds between the three entities' accounts to cover her theft.
The scheme began to unravel in September 2009, when a BFC board member was notified by the company's bank that BFC's $250,000 line of credit had reached its limit. The board member contacted Wagner-Dano, who falsely told him that the problem stemmed from the malfunction of her computer. She then paid back BFC's line of credit, also paying associated late fees and penalties on the account. She thereafter transferred $50,000 from her personal checking account to the Town of Lewis's bank account. In a letter to the BFC board of directors she sent in October, Wagner-Dano repeated her explanation that the credit line had reached its limit as a result of unauthorized transfers caused by a computer crash. When OLMPC board members confronted her one month later, however, she admitted that she had transferred money between accounts for OLMPC and the Town of Lewis. Wagner-Dano waived indictment on April 19, 2010, and pleaded guilty to one count of wire fraud in a scheme against OLMPC, BFC, the members of those cooperatives, and the Town of Lewis.
The United States Probation Office prepared a PSR that summarized the facts of Wagner-Dano's offense. It contained a calculation of Wagner-Dano's sentencing range pursuant to the United States Sentencing Guidelines ("the Guidelines") of 63 to 78 months' imprisonment. Wagner-Dano submitted a lengthy sentencing memorandum objecting to several statements in the PSR. The PSR was thereafter revised to address some of these objections.
The revised PSR and its addenda recount eight objections made by Wagner-Dano.
Second, the PSR states that Wagner-Dano owed $1,016,867.46 in restitution, but she argued that the proper restitution amount was $966,745.07.
Third, the PSR reports that "the Town of Lewis Supervisor .... states that the entire budget for the Town of Lewis is approximately $500,000 and the defendant stole half." Wagner-Dano objected that "it would be more accurate to consider the loss over the three-year period she took the funds, in which case the stolen funds represent about 15% of the Town's budget."
Fourth, the PSR states that "[o]n October 29, 2009, the defendant wrote a letter and sent it via fax to the Board of Directors of BFC in which she falsely stated that unauthorized transfers from the BFC checking account had occurred and were the result of her computer system having crashed." Wagner-Dano objected that she wrote this letter not in an attempt to cover up her thefts, but rather because she was advised to "concoct[ ] an excuse for the missing money" by BFC's treasurer, who "was running for public office at the time and apparently wanted to avoid having to take any responsibility for her actions."
Fifth, the PSR states that:
The PSR also specifically states that in October 2009, Wagner-Dano wrote two checks, each for $25,000, to the Town of Lewis, and that "[a]ccording to the Town Supervisor, the defendant deposited this money into the Town bank account because she knew the Town's expenses would soon be paid from this account and she did not want her theft to be discovered." Wagner-Dano objected that her October 2009 and November 2009 repayments were not attempts to cover up her theft, but rather were intended "to make restitution," because "[s]he knew she had been `found out' when she was questioned about the missing money at the end of September 2009."
Sixth, the PSR states in its "Mitigating and Aggravating Factors" section that "in the month following the commencement of the official criminal investigation, Wagner-Dano transferred ownership of the house she and her husband owned to her parents. Although she had made at least $100,000 in improvements to the property during the period she committed the crime, she received no compensation as part of the transfer." Wagner-Dano and her husband had purchased the home in January 2009 from her father, who gave
Seventh, the "Mitigating and Aggravating Factors" section of the PSR also states:
Wagner-Dano objected that the "sale of her assets immediately following the discovery of the offense ... was only [an] attempt[ ] to make restitution and not ... to cover up the thefts." According to Wagner-Dano, she "sold the horses and pulling truck for the best prices she was offered," but the gypsy horse breed "had depreciated in value due to increased availability."
Eighth and finally, the PSR indicates that Wagner-Dano objected to its valuation of the custom truck she purchased:
Wagner-Dano also objected that she did not use stolen money to purchase or customize the pulling truck.
At the outset of sentencing, the district court asked, "[D]o counsel have any objections to the facts as stated in the presentence report?" Wagner-Dano's counsel replied, "Judge, my only objections were summarized in the addendum." Counsel specifically stated that Wagner-Dano had no objection to the Probation Office's calculation of Wagner-Dano's offense level or criminal history category.
The Supervisor of the Town of Lewis spoke at sentencing, indicating that the Town had lost the money it had set aside for a town hall and unemployment insurance fund. Two dairy farmers also made
Later during the sentencing hearing, the district court stated:
The district court then sentenced Wagner-Dano to 78 months' imprisonment. Wagner-Dano's counsel made no objections.
On appeal, Wagner-Dano argues that her sentence should be vacated on both procedural and substantive grounds. Procedurally, she argues that the district court gave inadequate consideration to the sentencing factors set forth in 18 U.S.C. § 3553(a). She also argues that the district court violated Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure by neglecting to address several of her objections to the PSR.
Section 3553(a) of Title 18 requires a district court to consider several factors in determining a sentence.
Wagner-Dano argues first that the district court failed to consider "the nature and circumstances of the offense and the history and characteristics of the defendant" as required by 18 U.S.C. § 3553(a)(1). Specifically, she argues that the district court failed to address her repayment of over $350,000; her lack of criminal history; and her "consistent history of hard work." Appellant's Br. at 19. Wagner-Dano further argues that the district court failed to consider her low risk of recidivism based on her sex, age, education level, family status, and offense. She contends that these facts are relevant to the need for her incapacitation and specific deterrence, and thus should have been addressed by the district court as part of its consideration of the 18 U.S.C. § 3553(a)(2)(B) and (C) factors.
Wagner-Dano presented substantially these arguments to the district court in a sentencing memorandum and explained many of them again, orally, at sentencing. Nothing in the record of this case indicates that the district court did not consider these arguments or the § 3553(a) factors more generally. Indeed, after hearing these arguments, Chief Judge Mordue stated, "I have reviewed and I've considered all pertinent information including but not limited to the presentence investigation report, the addendum, the submissions by counsel. I've also considered ... the factors that are outlined in 18 U.S.C. [§ ] 3553(a) as well as the Sentencing Guidelines." We have concluded in the context of a similar procedural challenge to a sentence that a nearly identical district court statement "could not have been more clear." Bonilla, 618 F.3d at 111.
Moreover, where a defendant does not object to a district court's alleged failure to properly consider all of the § 3553(a) factors, our review on appeal is restricted to plain error. See id.; United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir.2007). Wagner-Dano did not object that the district court procedurally erred by failing to give adequate consideration to the § 3553(a) factors; she raises that argument for the first time on appeal. Accordingly, the plain-error standard applies. We find no error, much less plain error, here.
Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure states that a district court, at sentencing, "must—for any disputed portion of the presentence report or other controverted matter—rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing." Wagner-Dano argues that the district court failed to comply with Rule 32(i)(3)(B) by neglecting to address several
Some of Wagner-Dano's objections— such as the loss and restitution amounts, the value of the pulling truck, and whether the truck was purchased with stolen money—directly disputed the PSR's statement of the facts. These issues were resolved by the district court's decision to adopt as findings the factual information in the PSR. Others of Wagner-Dano's objections, however, did not directly dispute the facts as set forth in the PSR, but rather attempted to clarify Wagner-Dano's motives or provide context for the PSR's facts. These include Wagner-Dano's objections regarding: (1) her motive for writing the October 29, 2009, letter which falsely blamed BFC's account deficits on a computer problem; (2) her motive for making repayments in October and November 2009; (3) her motive for selling her assets; and (4) her motive for transferring her house to her parents. Because the PSR did not directly conflict with Wagner-Dano's explanations on these issues, the district court's adoption of the PSR may not have disposed of these objections.
Wagner-Dano presented her factual objections in a memorandum to the district court prior to sentencing. She mentioned them at sentencing only insofar as the district court asked, "[D]o counsel have any objections to the facts as stated in the presentence report?", to which Wagner-Dano's counsel replied, "Judge, my only objections were summarized in the addendum." The district court then adopted the PSR's statement of facts—presumably believing that in so ruling, it had disposed of all of Wagner-Dano's objections. Cf. United States v. Prince, 110 F.3d 921, 924 (2d Cir.1997) ("A district court satisfies its obligation to make `findings sufficient to permit appellate review ... if the court indicates, either at the sentencing hearing or in the written judgment, that it is adopting the recommendations in the [PSR].'") (omission in original) (quoting United States v. Thompson, 76 F.3d 442, 456 (2d Cir.1996)). When the district court adopted the PSR and pronounced its sentence, Wagner-Dano did not object on the procedural ground that the court had failed to address her objections to the PSR and rule on the matters she disputed.
The parties disagree whether, under these circumstances, our review of the district court's compliance with Rule 32(i)(3)(B) is limited to plain error. For the reasons set forth herein, we hold that it is. We review only for plain error where, as here, an appellant asserts that the district court neglected to address an objection to the PSR in violation of Rule 32(i)(3)(B), but that appellant failed to alert the district court of this procedural issue after the district court made its findings or pronounced its sentence. Finding no plain error here, we reject Wagner-Dano's claim that her sentence was procedurally flawed by virtue of the district court's alleged failure to rule on her objections to the PSR.
This Circuit's precedents are unclear regarding what standard of review we apply where a defendant initially makes an objection to the PSR at sentencing, but then fails to object when the district court allegedly violates Rule 32(i)(3)(B) by neglecting to resolve or otherwise address the objection.
"Federal Rule of Criminal Procedure 52(b), which governs on appeal from criminal proceedings, provides a court of appeals a limited power to correct errors that were forfeited because not timely raised in district court." United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (emphasis added). Accordingly, our general rule is that "issues not raised in the trial court because of oversight, including sentencing issues, are normally deemed forfeited on appeal unless they meet our standard for plain error." Villafuerte, 502 F.3d at 207. See generally Fed.R.Crim.P. 52; Charles Alan Wright et al., Federal Practice & Procedure § 856 (3d ed.2011) ("There would seem to be no error to which plain error review would not apply.... No exception for sentencing errors appears in either the Rule [52(b) ] or the [Supreme] Court's cases interpreting the rule."). This Circuit has recognized exceptions in the sentencing context where an appellant lacked prior notice of the aspect of the sentence challenged on appeal, see Villafuerte, 502 F.3d at 208, in part because "noticing unobjected to errors that occur at trial precipitates an entire new trial that could have been avoided by a timely objection, whereas correcting a sentencing error results in, at most, only a remand for resentencing." United States v. Sofsky, 287 F.3d 122, 125 (2d Cir.2002). But "we have declined to overlook a lack of objection where the sentencing issue was not particularly novel or complex." Villafuerte, 502 F.3d at 208 (internal quotation marks omitted).
For example, as discussed in the prior section of this opinion, our decision in United States v. Villafuerte, 502 F.3d 204 (2d Cir.2007), held that plain-error analysis applies where an appellant argues for the first time on appeal that the district court failed to consider the § 3553(a) sentencing factors. Although the defendant in Villafuerte made a substantive argument before the district court for a below-Guidelines sentence based on his personal circumstances, see id. at 206, we held that such a substantive objection did not preserve his procedural challenge that the district court had neglected to consider the sentencing factors, see id. at 207. We explained that "[b]ecause we have unambiguously required consideration of the § 3553(a) factors ... in every criminal sentencing proceeding [since 2005]," this issue is not particularly novel or complex. Id. at 208; see id. at 211. Accordingly, "raising an objection to the failure to do so in order to alert the district court to the problem is neither difficult nor onerous. This requirement alerts the district court to a potential problem at the trial level and
Villafuerte's reasoning is equally applicable to Rule 32(i)(3). The requirements of Rule 32(i)(3)(B), like the requirements of § 3553(a), are neither novel nor complex. If the defendant or the Government believes that a particular factual issue is material and the district court neglects to address the issue at sentencing, it is not difficult—indeed, it should be intuitive—to bring this procedural error to the district court's attention. Employing a plain error standard in the review of Rule 32(i)(3) arguments raised for the first time on appeal, moreover, is consistent with the practice in those sister circuits that appear to have considered the issue. See United States v. Williamson, 53 F.3d 1500, 1527 (10th Cir.1995) (reviewing only for plain error because although the defendant "raised an objection to [a] statement in the presentence report, she candidly concedes she did not make a separate objection to the district court's failure to make an appropriate finding under Rule 32[ ]"); see also United States v. Brame, 448 Fed. Appx. 364, 366 (4th Cir.2011) (unpublished decision); United States v. Vonner, 516 F.3d 382, 388 (6th Cir.2008) (en banc). But cf. United States v. Williams, 612 F.3d 500, 517 (6th Cir.2010) (distinguishing Vonner as not involving "a genuine dispute between the parties," but "emphasiz[ing] that [Williams ] is not an ordinary case").
We note that our decision today departs from our practice with regard to Rule 32(i)(3)'s earliest predecessor, Rule 32(c)(3)(D) (1988).
Our cases decided under Rule 32(c)(3)(D), from its adoption in 1983 until the rule was amended in 1994, held that even "virtually de minimis" technical violations of Rule 32(c)(3)(D) required remand for clarification—though we rarely required resentencing. United States v. Bradley, 812 F.2d 774, 782 (2d Cir.1987); see also United States v. Feigenbaum, 962 F.2d 230, 232 (2d Cir.1992); United States v. Williamsburg Check Cashing Corp., 905 F.2d 25, 27 (2d Cir.1990); Dunston v. United States, 878 F.2d 648, 650 (2d Cir. 1989) (per curiam); United States v. Arefi, 847 F.2d 1003, 1007-08 (2d Cir.1988); United States v. Ursillo, 786 F.2d 66, 71 (2d Cir. 1986). And although none of our opinions in those cases mentions whether the appellant made a separate procedural objection when the district court allegedly failed to address a factual objection to the PSR, this silence suggests that in most of those cases no such separate objection was made. Our strict review under Rule 32(c)(3)(D) therefore may have been incompatible with the plain-error standard.
The exactness we required under that rule stemmed from its explicit purpose of
Since then, the relevant portion of Rule 32 has been materially amended twice, each time to reduce the burdens on the district court and to confine the rule to the more limited purpose of sentencing. The 1994 amendment indicated that a court "need not resolve controverted matters which will `not be taken into account in, or will not affect, sentencing,'" with the intended purpose of "identifying and narrowing the issues to be decided at the sentencing hearing."
Our cases decided under the modern Rule 32(i)(3), with its more limited focus on controverted issues relevant to sentencing, have departed from our prior practice. For example, in United States v. Gilmore, 599 F.3d 160 (2d Cir.2010), the district court heard the defendant's objections regarding the applicability of a Sentencing Guidelines enhancement, said "Thank you very much," and adjourned the proceeding without making a ruling. Id. at 165. On appeal, we agreed with the appellant that "the court's failure to rule on his objection to the court's interpretation of the 2004 Guidelines was at least a technical error" in violation of Rule 32(i)(3)(B). Gilmore, 599 F.3d at 168. We nonetheless affirmed
For the reasons stated here, we conclude that our prior practice under Rule 32(i)(3), although we have not explicitly addressed the standard of review, is wholly compatible with a plain-error standard of review for unpreserved challenges.
As the Supreme Court has recently reiterated, when reviewing for plain error,
United States v. Marcus, ___ U.S. ___, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010) (brackets and internal quotation marks omitted). "[T]he burden of establishing entitlement to relief for plain error is on the defendant claiming it...." United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).
Even assuming arguendo that the district court in this case erred by insufficiently addressing Wagner-Dano's objections to the PSR, we cannot say that the error is plain. To be "plain," an error must be so obvious that "the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it." United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). That is clearly not the case here.
Most of the objections Wagner-Dano raised that were not disposed of by the district court's adoption of the PSR—regarding, for instance, the proper way to characterize the Town of Lewis's loss and Wagner-Dano's motives for sending the letter to the BFC board of directors, for selling her assets, and for transferring her
Granted, Wagner-Dano's objection that her $50,000 repayment to the Town of Lewis in October 2009 was intended to make restitution rather than to cover up her theft clearly conflicts with the PSR's statement that, "[a]ccording to the Town Supervisor, the defendant deposited this money into the Town bank account because... she did not want her theft to be discovered." The court's adoption of the PSR did not resolve this factual dispute, because the PSR itself took no position with regard to it. We cannot conclude on this record, however, that the district court's failure to address this issue prejudiced Wagner-Dano's sentence. And regardless, we do not believe that the alleged failure by the district court to address this objection so "seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings" that we should exercise our discretion to correct it. Marcus, 130 S.Ct. at 2164.
Wagner-Dano next argues that her sentence of 78 months' imprisonment is substantively unreasonable based on her voluntary repayment efforts, lack of criminal history, work history, low risk of recidivism, and family status. She also points out that the victims' loss amount ($1,169,717.74) was at the bottom end of the range for a sixteen-level enhancement (between $1,000,000.01 and $2,500,000, see U.S.S.G. § 2B1.1(b)(1)), and that the number of victims (56) was also at the bottom end of the range for a four-level enhancement (between 50 and 249 victims, see U.S.S.G. § 2B1.1(b)(2)).
"We will ... set aside a district court's substantive determination only in exceptional cases where the trial court's decision cannot be located within the range of permissible decisions." Cavera, 550 F.3d at 189 (emphasis and internal quotation marks omitted). Wagner-Dano's sentence is within the Guidelines range, and although we do not presume that a within-Guidelines sentence is substantively reasonable, see United States v. Dorvee, 616 F.3d 174, 183 (2d Cir.2010), "in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances." United States v. Friedberg, 558 F.3d 131, 137 (2d Cir.2009). We see nothing in this record to indicate that the district court imposed an unacceptably harsh sentence here.
For the foregoing reasons, we affirm the judgment of the district court.
Rule 32(c)(3)(D) (1988).
Fed.R.Crim.P. 32(c)(1) (1994).