                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   May 12, 2011
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                            __________________________              Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 10-1444
 v.                                          (D.Ct. No. 1:08-CR-00458-MSK-4)
                                                          (D. Colo.)
 MANIVONE SAIGNAPHONE, a/k/a
 Mindy Saignaphone,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument.




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Appellant Manivone Saignaphone, also known as Mindy Saignaphone, pled

guilty to one count of conspiracy to defraud the government in violation of 18

U.S.C. § 286, after which the district court sentenced her to sixteen months

incarceration – eight months to be served in prison and eight months in home

detention. Ms. Saignaphone now appeals her sentence, arguing it is substantively

unreasonable under the 18 U.S.C. § 3553(a) sentencing factors because the

district court unreasonably discounted the evidence she proffered which

demonstrated her extremely low risk of recidivism. We exercise jurisdiction

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm Mrs.

Saignaphone’s sentence.



                      I. Factual and Procedural Background

      On November 4, 2008, a forty-count indictment issued against multiple

individuals, including Ms. Saignaphone who was charged with nineteen counts of

mail fraud, in violation of 18 U.S.C. § 1341, as well as one count of conspiracy to

defraud the government, in violation of 18 U.S.C. § 286. The indictment

stemmed from an investigation into a fraud scheme occurring from January 28,

2005, through September 4, 2006, involving a Colorado corporation, Olympia

Financial and Tax Services, Inc. (Olympia). During Ms. Saignaphone’s

involvement in the fraud scheme, she worked in Denver at Olympia as a

salesperson and at the United States Postal Service as a distribution and mail

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processing clerk. The investigation revealed Olympia submitted fraudulent

amended tax returns on behalf of taxpayers, which resulted in refunds being

issued to them, from which Olympia received a commission of forty to fifty

percent. Ms. Saignaphone participated in the scheme by soliciting customers and

facilitating the filing of their amended tax returns, including her co-workers at the

Postal Service, during which she made false representations to them about the

legitimacy of Olympia’s business and the legality of the amended tax returns

submitted. As part of the fraud scheme, Olympia filed over 700 amended false

federal tax returns with the Internal Revenue Service and over 400 amended false

state tax returns with the Colorado Department of Revenue. The total loss

attributed to Olympia’s scheme was $2,757,744.



      On December 3, 2009, Ms. Saignaphone pled guilty to Count 20 for

conspiracy to defraud the government, in violation of 18 U.S.C. § 286, in return

for the government requesting that the remaining counts be dismissed against her.

In addition, in her plea agreement, she acknowledged $2,300,000 was the loss

reasonably foreseeable and attributable to her as a result of her participation in

Olympia’s fraud scheme. She also agreed to cooperate with the government in its

ongoing investigation in exchange for its agreement to move for a downward

departure for her cooperation.




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      Following her guilty plea, a probation officer prepared a presentence report,

calculating Ms. Saignaphone’s sentence under the applicable 2009 United States

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). The probation officer

recommended applying a base offense level of six, pursuant to U.S.S.G.

§ 2B1.1(a)(2), for her violation of 18 U.S.C. § 286, and increasing her base level

sixteen levels, pursuant to § 2B1.1(b)(1)(I), because the actual and/or intended

loss attributable to her was more than $1,000,000 but less than $2,500,000. The

probation officer also recommended a three-level reduction as a mitigating role

adjustment and another three-level reduction for acceptance of responsibility, for

a total offense level of sixteen, which, together with her criminal history category

of I, resulted in a recommended Guidelines range of twenty-one to twenty-seven

months imprisonment.



      In computing Ms. Saignaphone’s sentence, the probation officer also

acknowledged the government’s intent to request a downward departure if she

cooperated in its investigation. The probation officer also discussed the

sentencing factors under 18 U.S.C. § 3553(a), noting, in part, the seriousness of

Ms. Saignaphone’s offense and the need for her sentence to promote respect for

the law, provide just punishment, and afford adequate deterrence, but also

explaining her lack of prior criminal history or prior imprisonment meant any

sentence of incarceration would likely provide a deterrent effect on her.

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      Ms. Saignaphone filed formal objections to the presentence report,

requesting a variant sentence of probation with home detention, contending

Congress intended sentences in cases like hers to be imposed through probation,

but, instead, the United States Sentencing Commission recommended a Guidelines

sentence of incarceration based on a flawed analysis of “empirical data and

national experience.” In support, she (1) provided data suggesting similar forty-

four-year-old defendants with no prior criminal history had only a 6.9 percent

chance of re-offending; (2) cited to federal cases from other jurisdictions which

imposed or upheld variant sentences based on the defendant’s statistically low

recidivism risk; (3) pointed out the non-violent nature of her offense where she

played a narrow and limited role in soliciting prospective customers; and (4)

noted she lacked any history in committing prior offenses and maintained positive

personal characteristics, as evidenced by almost two dozen letters submitted on

her behalf. As a result, she argued, a sentence of home detention would result in

a sentence sufficient but not greater than necessary to meet the sentencing factor

goals in 18 U.S.C. § 3553(a) by promoting respect for the law, adequate

deterrence, and protection of the public.



      Prior to sentencing, the government filed a motion for a downward

departure based on Ms. Saignaphone’s substantial assistance in its investigation.




                                            -5-
In so doing, it requested a twenty-five-percent downward departure from the low

end of the Guidelines range for a sentence of sixteen months imprisonment.



      At sentencing, Ms. Saignaphone did not object to the calculation of her

sentence or the downward departure, but through counsel she renewed her

arguments for a variant non-Guidelines sentence of eight months home detention

and five years probation, again claiming an eight-month sentence of home

detention would be sufficient but not greater than necessary to meet the

sentencing factor goals in § 3553(a) for the same reasons articulated in her prior

motion. She also continued her assertion a sixteen-level offense increase for her

crime was based on a “flawed analysis of both empirical data and national

experience” unsupported by “social science research” where the Sentencing

Commission continually “ratcheted up” the sentences. In requesting a variant

sentence, Ms. Saignaphone’s counsel also pointed out another co-defendant,

Annalisa Wittaker, received a downward-variant sentence of home detention and

probation, but admitted Ms. Wittaker received such a variance for reasons

different than those presented by Ms. Saignaphone and a different length of time

than requested by Ms. Saignaphone.



      In response, the government argued against a variant sentence of home

detention, pointing to the fact Ms. Saignaphone’s recommended Guidelines

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sentence was already a relatively short one and advocating incarceration rather

than home detention because her offense resulted in a foreseeable loss of millions

of dollars. While it agreed co-defendant sentences must be considered, it pointed

out Ms. Saignaphone’s circumstances in the fraud scheme differed from Ms.

Wittaker’s because of the close familial relationship Ms. Wittaker had with her

father, who operated the scheme, and the fact he was overbearing and

domineering towards her. Rather than a variant sentence, the government

renewed its request for a downward departure resulting in a sixteen-month

sentence with eight months served in incarceration and the other eight months

served during home detention.



      After granting the government’s motion for a downward departure, the

district court addressed Ms. Saignaphone’s request for a variant sentence. In

determining a variant sentence was not justified, it acknowledged that, in

imposing the Guidelines, the Sentencing Commission may have failed to pay

deference to the Congressional preference for probationary sentences, and the

Guidelines applicable to her offense had resulted in a historical increase or

“ratcheting up.” However, after noting it had authority to impose a variant

sentence if it believed the Guidelines were flawed, it stated the record presented

in the instant case did not support a variant sentence and, therefore, it would not

second-guess either the Guidelines or whether the Sentencing Commission

                                         -7-
inappropriately relied on faulty information in recommending such Guidelines.

While the district court acknowledged an accurate interpretation of the statistical

information was that Ms. Saignaphone fell into a demographic for which there is

not a high risk of recidivism, it concluded that same information “in no way

predict[ed] her individual likelihood of recidivism, only the likelihood of

recidivism of an entire population with the same characteristics.” It also

explained the other co-defendant, Ms. Wittaker, received a lighter sentence than

requested by Ms. Saignaphone based on Ms. Wittaker’s unusual situation,

including her particular vulnerability to her father, so that Ms. Saignaphone was

not similarly-situated for the purpose of a variance.



      Finally, the district court explicitly considered the sentencing factors under

18 U.S.C. § 3553(a), noting Ms. Saignaphone had never been convicted of a crime

and possessed fine personal qualities and great family support but that she had

admitted to falsely representing and inducing others with respect to the tax returns

at issue and thereby caused victimization of taxpayers by defrauding the federal

and state governments. The district court then imposed a sentence of eight

months imprisonment and eight months home detention, to be followed by three

years of supervised release and payment of $52,868.65 in restitution. It

determined such a sentence was sufficient but not greater than necessary to satisfy

the sentencing objectives in § 3553(a), including for the sentence to reflect the

                                         -8-
seriousness of the offense, promote respect for the law, deter others from

committing the same offense, and provide just punishment.



      Ms. Saignaphone’s counsel objected to the sentence, stating he “disagree[d]

with the Court’s analysis concerning the [G]uidelines and specifically disagree[d]

that the Court [was] not in a position to determine if there ha[d] been

inappropriate reliance on improper factors by the Sentencing Commission” and

also “disagree[d] with how the Court interpret[ed] the recidivism statistics with

respect to the demographics.” The district court responded by stating, “so the

record is absolutely clear, the Court’s finding is that the record as submitted does

not allow the Court to conclude that there is justification for a variance on either

of those grounds ... [n]ot that I lack the authority to make that determination.”



                                   II. Discussion

      On appeal, Ms. Saignaphone does not challenge the procedural component

in the calculation of her sentence but argues her sentence is substantively

unreasonable because the district court “unreasonably discounted the evidence she

proffered to demonstrate her extremely low risk of recidivism.” In support, she

contends the district court:

      deemed [the] statistical and comparative evidence irrelevant to
      whether Ms. Saignaphone, specifically, would reoffend, ignoring
      both that statistical evidence is precisely what courts should consider

                                          -9-
      in assessing recidivism risk, and that because this was Ms.
      Saignaphone’s first criminal offense, her recidivist risk could only be
      assessed by comparing her to others with similar characteristics.

As a result, Ms. Saignaphone contends the district court abused its discretion in

refusing to consider such evidence and insisting such evidence would not predict

her individual likelihood of recidivism. She claims her sentence is greater than

necessary to comply with the basic aims of sentencing, particularly deterrence and

protection of the public from future crimes.



      We review a sentence for reasonableness, giving deference to the district

court under an abuse of discretion standard. See United States v. Smart, 518 F.3d

800, 802, 805-06 (10 th Cir. 2008). The district court abuses its discretion if the

resulting sentence is “arbitrary, capricious, whimsical, or manifestly

unreasonable.” United States v. Huckins, 529 F.3d 1312, 1317 (10 th Cir. 2008)

(quotation marks omitted). “Our appellate review for reasonableness includes

both a procedural component, encompassing the method by which a sentence was

calculated, as well as a substantive component, which relates to the length of the

resulting sentence.” Smart, 518 F.3d at 803. Here, Ms. Saignaphone expressly

states she is not appealing the procedural reasonableness of her sentence, but is

challenging the sufficiency of the § 3553(a) justifications relied on by the district

court, which we have said “implicates the substantive reasonableness of the




                                         -10-
resulting sentence” when viewed under the 18 U.S.C. § 3553(a) factors. Id. at

804.



       If the sentence is within the correctly-calculated Guidelines range, as Ms.

Saignaphone agrees it is, we apply a presumption of reasonableness. See United

States v. Kristl, 437 F.3d 1050, 1053-55 (10 th Cir. 2006) (per curiam). She may

rebut this presumption by demonstrating the sentence is unreasonable when

viewed under the § 3553(a) factors. See id. at 1054-55. The 18 U.S.C. § 3553(a)

sentencing factors include:

       The nature and circumstances of the offense, the history and
       characteristics of the defendant; the need for the sentence imposed to
       afford adequate deterrence, protect the public, and provide the
       defendant with needed educational or vocational training, medical
       care or other correctional treatment in the most effective manner;
       pertinent guidelines; pertinent policy statements; the need to avoid
       unwanted sentence disparities; and the need to provide restitution.

United States v. Cordova, 461 F.3d 1184, 1188-89 (10 th Cir. 2006) (quoting

United States v. Contreras-Martinez, 409 F.3d 1236, 1242 n.3 (10 th Cir. 2005)).

“The sentencing court ... is not required to consider individually each factor listed

in § 3553(a), nor is it required to recite any magic words to show us that it

fulfilled its responsibility to be mindful of the factors that Congress has instructed

it to consider before issuing a sentence.” Id. at 1189 (quotation marks omitted).

Instead, the district court must “state in open court the reasons for its imposition

of the particular sentence,” 18 U.S.C. § 3553(c), and satisfy us that it “has

                                         -11-
considered the parties’ arguments and has a reasoned basis for exercising [its]

own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356

(2007). In so doing, “[i]t is well established that the sentencing court is entitled

to rely on uncontested facts contained in the [presentence report] for certain

sentencing purposes,” including to draw conclusions about the nature of the

offense and history and characteristics of the defendant relevant to the sentencing

factors in 18 U.S.C. § 3553(a). United States v. Mateo, 471 F.3d 1162, 1166-67

(10 th Cir. 2006).



       With these principles in mind, we turn to Ms. Saignaphone’s appeal of the

substantive reasonableness of her sentence. In this case, she briefed and orally

presented her arguments to the district court. The district court explicitly

acknowledged Ms. Saignaphone’s arguments, including her contentions: (1) the

Guidelines applicable to her offense have resulted in historical increases in, or the

ratcheting up of, the Guidelines; (2) the Sentencing Commission failed to pay

sufficient deference to the Congressional preference for probationary sentences;

(3) she fell into a demographic for which there is not a high risk of recidivism;

(4) her situation required a variant sentence as provided to one of her co-

defendants and other similarly-situated defendants with a statistically low risk of

recidivism; and (5) her lack of criminal history, commendable personal

characteristics, and strong family support should have resulted in a sentence of

                                         -12-
home detention. Accordingly, we are confident it considered all of Ms.

Saignaphone’s arguments in support of a variance.



      Not only did the district court consider those arguments, but it clearly

rejected them. It concluded the record presented in Ms. Saignaphone’s case did

not support a variant sentence of probation, even if the Guidelines applicable to

her resulted in historical increases in the Guidelines, the Sentencing Commission

failed to defer to Congress’ preference for probationary sentences, or she fell into

a demographic for which there was a low risk of recidivism. This is because it

found Ms. Saignaphone’s offense of defrauding the government and taxpayers of

$2,300,000 serious and sufficient enough to deny a sentence of home detention,

which it believed would be insufficient punishment for an offense of that

magnitude, regardless of her lack of prior criminal history, chances of recidivism,

or Congress’ intent regarding probation. Instead, it concluded the sentence

imposed was sufficient but not greater than necessary to satisfy the sentencing

objectives in § 3553(a), including for the sentence to reflect the seriousness of the

offense, promote respect for the law, deter others from committing the same

offense, and provide just punishment. Thus, the district court sufficiently stated

in open court the reasons for its imposition of her sentence under 18 U.S.C.

§ 3553(c), satisfying us it “considered the parties’ arguments and ha[d] a reasoned




                                         -13-
basis for exercising [its] own legal decisionmaking authority.” Rita, 551 U.S. at

356.



       As to Ms. Saignaphone’s specific assertions on variant sentences for

defendants with statistically low recidivism rates, we do not require courts to

distinguish between a defendant’s characteristics and history and those of the

ordinary offender contemplated by the Guidelines when considering or imposing a

variance, nor do we consider the existence of extraordinary defendant

characteristics and history. See Smart, 518 F.3d at 808. Instead, while the

Guidelines “reflect a rough approximation of sentences that might achieve

§ 3553(a)’s objectives” and provide a “measure of national practice to use as a

starting point,” we recognize the district court has “greater familiarity with the

individual case and the individual defendant” for the purpose of determining

whether to impose a variance. Id. (quotation marks omitted). Here, the district

court recognized it had discretion or authority to impose a variant sentence if it

believed the Guidelines were flawed, but under the particular facts of Ms.

Saignaphone’s case, it determined the Guidelines sentence of incarceration was

warranted, regardless of her low chance of recidivism and other arguments to the

contrary. Under the circumstances presented, Ms. Saignaphone has failed to rebut

the presumption her Guidelines sentence is reasonable when viewed under the




                                         -14-
§ 3553(a) factors or that the district court otherwise abused its discretion or

imposed an arbitrary, capricious, whimsical, or manifestly unreasonable sentence.



                                   III. Conclusion

      For these reasons, we AFFIRM Ms. Saignaphone’s sentence.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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