         Case: 15-13928    Date Filed: 10/05/2016   Page: 1 of 16


                                                                    [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13928
                      ________________________

               D.C. Docket No. 6:15-cr-00084-GKS-GJK-1


UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,


                                 versus


ANE PLATE,


                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (October 5, 2016)
               Case: 15-13928       Date Filed: 10/05/2016       Page: 2 of 16


MARTIN and JORDAN, Circuit Judges, and VINSON, ∗ District Judge.

VINSON, District Judge:

       This case raises a common dilemma in sentencing defendants for financial

crimes: balancing the payment of restitution for the victims against the length of

incarceration for the defendant. Ane Plate pled guilty to embezzlement by a bank

officer or employee, in violation of 18 U.S.C. § 656. When she was unable to pay

full restitution, she was sentenced to 27 months in prison. Plate argues on appeal

that the sentence violated her constitutional rights and that it was both procedurally

and substantively unreasonable. After careful review, and with the benefit of oral

argument, we hold that the sentence was substantively unreasonable and that a new

sentencing is required.

                                               I.

       Born in American Samoa, Polynesian Islands, Plate moved to Hawaii with

her family when she was five or six years old. While attending the University of

Hawaii, she met her future husband Raymond. She was 20 years old at that time,

and he was 43. Raymond worked for the District Courts of Hawaii and eventually

became a supervisor. He retired in 1989, after which the couple moved to Florida

where Plate was employed as a financial assistant or advisor for the next 25 years.



       ∗
         Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
                                               2
              Case: 15-13928    Date Filed: 10/05/2016    Page: 3 of 16


      During the time relevant to this case, Plate worked at Wells Fargo Advisors

Financial Network (“Wells Fargo”) at their branch office in Orlando, Florida. She

was the long time financial advisor for an elderly couple, Mr. and Mrs. D.M., and

she managed their securities and bonds portfolio. Over the course of her 20-year

relationship with the couple, they became close friends. As their mental capacities

diminished with age---and after they moved into an assisted living facility---Plate

began to perform duties for the couple outside and beyond the traditional financial

advisor role, including driving Mr. D.M. to his bank, helping Mrs. D.M. obtain her

medical prescriptions, and performing other care-giver activities.

      In 2013, Plate told Mr. and Mrs. D.M. that her husband Raymond had been

suffering from a terminal illness to which he eventually succumbed in September

of that year. After his death, Plate asked the couple for money to help with funeral

expenses, and they gave her a personal check for $9,000.00. Shortly thereafter, on

or about October 22, 2013, Plate induced Mr. D.M to execute a Wells Fargo ACH

Authorization Agreement that allowed for the transfer of funds from the couple’s

Wells Fargo trust account into a separate account at SunTrust Bank. From October

2013 through May 2014, she manipulated Mr. D.M. into writing personal checks to

her (12 total) from the SunTrust account, and she liquidated securities in the trust

account by making a number of unauthorized sales (15 total). She used the funds

that she obtained from these transactions to, inter alia, pay her mortgage and make


                                          3
              Case: 15-13928     Date Filed: 10/05/2016    Page: 4 of 16


major upgrades to her home, including new fencing and air conditioning units. In

total, she defrauded the couple of $176,079.70, and she left little to nothing in their

account.

      In July 2014, a Secret Service agent interviewed the couple at their assisted

living facility. Mr. D.M---who suffered from dementia---was incoherent during

the course of the interview, and the couple’s adult son confirmed that his parents

had diminished mental capacity. The next month, on August 26, 2014, the agent

contacted and interviewed Plate at a public coffee shop, during which she gave a

written confession, detailed the extent of her fraud, and expressed remorse for her

actions. By indictment dated April 15, 2015, she was charged with a single count

of embezzlement by a bank officer or employee in violation of 18 U.S.C. § 656.

She self-surrendered on April 20, 2015, and she was released with pretrial service

supervision that same day. She subsequently pled guilty to the offense as charged

in the indictment.

      The presentence investigation report (“PSI”) calculated a base offense level

of 7 under U.S.S.G. § 2B1.1(a)(1). Plate received a 10-level enhancement under §

2B1.1(b)(1)(F) based on the amount of the loss, along with a 4-level enhancement

under § 2B1.1(b)(19)(A)(iii) because the crime involved a violation of securities

law and because she was a financial advisor. After receiving a 3-level reduction

for acceptance of responsibility under U.S.S.G. § 3E1.1(a)-(b), her total offense


                                           4
              Case: 15-13928     Date Filed: 10/05/2016   Page: 5 of 16


level was 18. Plate had no prior convictions, which resulted in a criminal history

category of I. Based on an offense level of 18 and a criminal history category of I,

her guideline range was 27 to 33 months.

      The PSI reported that Plate, who was 59 years old at the time of sentencing,

had a traumatic childhood during which she witnessed her mother being physically

abused by four or five different husbands. The PSI also reported that her husband

of more than 30 years (who was described as “her rock and best friend”) had died

in September 2013, and she had reportedly “not been able to overcome his death.”

In or about June 2015, after the events giving rise to this case, Plate was diagnosed

with depressive disorder, sold her house, and moved in with her brother. She was

unemployed at that time, with no significant assets or liabilities, and her net worth

was $47,500.00. The PSI did not identify any factors that would warrant departure

from the guideline range of 27 to 33 months, but it did identify several factors that

might warrant a sentence outside the advisory range, namely, her age, upbringing,

mental condition, and the fact that she had no prior criminal history. Neither party

objected to the PSI.

      Prior to sentencing, Plate filed a memorandum with the district court, asking

for a sentence of probation (which she realized would be a “tremendous variance”).

She maintained that she was extremely remorseful, had sold her house to help pay

restitution, and was determined “to pay back ever [sic] penny that is owed.” She


                                          5
                Case: 15-13928       Date Filed: 10/05/2016      Page: 6 of 16


argued that probation was appropriate in her case---and that recidivism and safety

of the community were not a concern---because her crime was an anomaly brought

on by depression and reduced mental capacity following the death of her husband.

      In support of her position and argument, Plate attached a forensic evaluation

by a licensed psychologist, Jacquelyn Olander, Ph.D. According to Dr. Olander’s

report, Raymond made most of couple’s “important life decisions” and “took care

of everything” during their marriage. After he died, Plate “experienced confusion

and significant uncertainty about herself.” Having to assume the responsibilities of

life without her husband, Dr. Olander opined, “created much fear and apprehension

such that she developed a maladaptive coping style of avoidance characterized by

apathy and indifference.” Because of this “maladaptive coping to stress” (coupled

with her “impaired emotional understanding” and “reduced mental capacity”), Dr.

Olander determined that Plate “may have engaged in illegal behaviors based upon

her attempt to replace or substitute the loss of her husband without any conscious

awareness of the occurring underlying psychological processes.” 1


      1
          According to the sentencing memorandum:

               [Plate and Raymond] had no children and by all accounts were a
               very united couple. Mr. [sic] Plate has stated that she has been
               unable to overcome his death. The actions that constitute the
               charges in this case occurred shortly after her husband’s death.
               Ms. Plate has acknowledged that her husband’s death left her in
               total and absolute despair.

                                              ***
                                               6
                Case: 15-13928       Date Filed: 10/05/2016       Page: 7 of 16


      In addition to Dr. Olander’s report, the sentencing memorandum attached

numerous letters from Plate’s siblings, coworkers, her supervisor at Wells Fargo,

and former clients, all expressing their belief that her actions were completely out

of character and detailing the profound impact that her husband’s death had on her.

Perhaps most notably, the victims’ adult children also wrote on her behalf, saying

what a good and trusted friend she was and representing that their “whole family”

believed that sending her to jail would not be appropriate on the facts of the case. 2

      At the sentencing hearing on August 19, 2015, Plate told the district judge

that she was “truly sorry.” She also told the judge (through her attorney) that she

brought $45,000.00 in cashier’s checks from the proceeds of the sale of her house

to put toward restitution. Because the PSI calculated her net worth as $47,500.00,

that was “pretty much everything she ha[d].” Her attorney further argued that her

behavior was “aberrant” and that a non-incarceration (probationary) sentence was

sufficient punishment as she “will live with this the rest of her life and her remorse

and her shame.”




               It is significant that Dr. Olander believes that Ms. Plate may have
               engaged in illegal behaviors based upon her attempt to replace or
               substitute the loss of her husband. While to the common observer
               this may seem unusual, Ms. Plate’s life completely imploded upon
               the loss of her husband and protector.
      2
          Mr. and Mrs. D.M. had both died by the time of sentencing.


                                                7
              Case: 15-13928     Date Filed: 10/05/2016     Page: 8 of 16


      The government did not dispute or challenge anything that Plate said during

the sentencing hearing, except to say that a probationary sentence was not possible.

The government argued that because a violation of Section 656 is a Class B felony,

the district judge was required to impose a term of prison (although it did request a

low-end guideline sentence). Plate pointed out in response, however, that because

she self-surrendered on April 20, 2015, the district judge could sentence her to

“time-served” (for that one day) followed by supervised release, which “would be

a legal sentence if the Court decided that, balancing out all the factors under [Title

18, United States Code, Section 3553(a)(1)-(7)], a sentence of non-imprisonment

was appropriate.”

      After noting that Plate had used her position of trust to take advantage of

“demented” and “helpless” victims, the district judge stated (emphasis added):

             Now, the Court takes into account that you have paid
             back $40,000 toward restitution; but that’s just a drop in
             the bucket when you’re talking about $142,000 that is
             what you stole.

             The Court would be glad under this case to give you
             probation if you had paid back the restitution; but with
             all this restitution still outstanding, the Court just can’t
             do it.

             I’ll tell you what I will do, though. You have a total
             offense level of 18, criminal history category I. The
             Court sees no reason in the Presentence Report to depart
             from the guidelines. I will sentence you to the low end of
             the guidelines of 27 months in the Bureau of Prisons, a
             two-year supervised release term, restitution of
                                           8
              Case: 15-13928     Date Filed: 10/05/2016     Page: 9 of 16


             $142,768.28 payable at $200 a month or more, depending
             on your ability to make restitution after you come out of
             prison, plus a $100 special assessment.

             What the Court will do is if you, your friends and
             supporters step up and pay your restitution, I will
             immediately convert your prison term to probation.

             You have two weeks in which to appeal this sentence if
             you think it is illegal. . . . Also, I’ll give you voluntary
             surrender on or before October 19th.

      Neither side objected at the time---even though the district judge gave them

an opportunity to do so---but the parties now agree on appeal that the court erred in

promising to “immediately convert” Plate’s prison sentence to probation if she paid

restitution. Indeed, the law clearly provides that a district court may not modify a

prison sentence after it has been imposed unless permitted by statute or by Rule 35

of the Federal Rules of Criminal Procedure. Freeman v. United States, 564 U.S.

522, 526, 131 S. Ct. 2685, 2690 (2011) (“Federal courts are forbidden, as a general

matter, to ‘modify a term of imprisonment once it has been imposed[.]’”) (quoting

18 U.S.C. § 3582(c)).

      Plate filed an appeal. She also filed a motion in the district court to remain

on bond pending the resolution of her appeal, which the court denied by endorsed

order without explanation. Thereafter, Plate moved this Court for release pending

her appeal, and she argued that the district court’s denial of her motion was legally

insufficient under Rule 9(a) of the Federal Rules of Appellate Procedure. A prior


                                           9
               Case: 15-13928        Date Filed: 10/05/2016       Page: 10 of 16


panel of this Court agreed, stayed her surrender date, and sent the case back to the

district court for the limited purpose of entering an order stating the reasons for its

earlier ruling. On remand, the district court explained that it denied Plate’s motion

to remain on bond (i) because she pled guilty, (ii) because she received a guideline

sentence, and (iii) because of the substantial amount of money that she embezzled,

“combined with the substantial outstanding restitution Plate had yet to repay.” The

district court further stated that her appeal was “frivolous” and that it did not raise

any substantial questions of law or fact. This Court then denied Plate’s motion for

release pending appeal, lifted the stay of her surrender date, and the appeal went to

oral argument, where Plate argued that her sentence violated the constitution and

that it was both procedurally and substantively unreasonable. Two days after oral

argument, we sua sponte ordered Plate released on bond pending this decision.

                                                II.

       Plate first argues that the district court violated her constitutional rights by

conditioning her liberty on her ability to pay restitution in full.3


       3
          In her brief, Plate argued that what the district judge did violated equal protection. At
oral argument, she said that it violated both equal protection and due process, which has support
in the law. For example, as the Supreme Court stated in Griffin v. Illinois, 351 U.S. 12, 76 S. Ct.
585 (1956), although “[p]roviding equal justice for poor and rich, weak and powerful alike is an
age-old problem,” our constitutional guaranties of due process and equal protection “both call for
procedures in criminal [cases] which allow no invidious discriminations between persons and
different groups of persons. Both equal protection and due process emphasize the central aim of
our entire judicial system—all people charged with crime must, so far as the law is concerned,
‘stand on an equality before the bar of justice in every American court.’” Id. at 16–17, 76 S. Ct.
at 589–90 (emphasis added). Ultimately, whether Plate’s claim in this case should be analyzed
                                                10
                Case: 15-13928        Date Filed: 10/05/2016        Page: 11 of 16


       Supreme Court precedent supports her claim. In Williams v. Illinois, 399

U.S. 235, 90 S. Ct. 2018 (1970), Tate v. Short, 401 U.S. 395, 91 S. Ct. 668 (1971),

and Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064 (1983), the Supreme Court

held that it violates equal protection principles to incarcerate a person “solely

because he lacked the resources to pay” a fine or restitution. Bearden, 461 U.S. at

668, 103 S. Ct. at 2070. It is apparent that Plate was treated more harshly in her

sentence than she would have been if she (or her family and friends) had access to

more money, and that is unconstitutional, as multiple courts have held.4 See, e.g.,

United States v. Burgum, 633 F.3d 810 (9th Cir. 2011) (citing Williams, Tate, and

Bearden for the “well established” principle that “the Constitution forbids

imposing a longer term of imprisonment based on a defendant’s inability to pay

restitution”); Noel v. State, 191 So.3d 370 (Fla. 2016) (relying on the same federal

cases and reaching the same conclusion).



as a question of due process, equal protection, or a combination of the two has no bearing on the
outcome of this appeal.
         4
           The facts of this case fully support the application of this constitutional principle here.
As previously noted, the district judge told Plate that he “would be glad under this case to give
you probation if you had paid back the restitution; but with all this restitution still outstanding,
the Court just can’t do it.” The judge then continued: “What the Court will do is if you, your
friends and supporters step up and pay your restitution, I will immediately convert your prison
term to probation.” Together, these statements unambiguously reflect that the district judge
would not have sentenced Plate to prison had she been able to pay the restitution in full.
Notably, the government conceded the point during oral argument as it agreed that, “based on the
court’s statements,” it was “very clear” that if Plate---or someone acting on her behalf---had paid
full restitution by the time of sentencing, “she would have walked out of that courtroom” without
a prison sentence at all.


                                                 11
               Case: 15-13928        Date Filed: 10/05/2016       Page: 12 of 16


       Nevertheless, despite the strength of her constitutional argument---indeed,

the government did not even oppose this argument in its brief---we do not base our

decision on that ground as we agree with Plate’s additional argument that the

sentence imposed was substantively unreasonable and an abuse of discretion. This

Court “need not reach the important constitutional questions raised” in cases that

can be decided on other grounds. See United States v. Madera, 528 F.3d 852, 859

(11th Cir. 2008) (per curiam); see also Slack v. McDaniel, 529 U.S. 473, 485, 120

S. Ct. 1595, 1604 (2000) (“Court[s] will not pass upon a constitutional question []

properly presented by the record, if there is also present some other ground upon

which the case may be disposed of[.]”) (quotation omitted).

       We review the substantive reasonableness of a sentence for abuse of

discretion. United States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010) (per

curiam). 5 In conducting this analysis, “[w]e acknowledge the institutional

superiority that district courts possess with regards to sentencing, and are mindful

that appellate review for reasonableness is not a license to substitute our views for

those of the district court.” United States v. Hayes, 762 F.3d 1300, 1307 (11th Cir.

2014). We also acknowledge that we can “ordinarily” expect a district court’s


       5
          We first considered Plate’s argument that the sentence was procedurally unreasonable,
as we are normally required to do. See, e.g., United States v. Hayes, 762 F.3d 1300, 1310 (11th
Cir. 2014). However, we review assertions of procedural error where there was no objection in
the district court only for plain error. United States v. Patterson, 595 F.3d 1324, 1326 (11th Cir.
2010). Under this standard of review, we found Plate’s argument to be lacking, and it is rejected
without discussion.
                                                12
             Case: 15-13928     Date Filed: 10/05/2016    Page: 13 of 16


sentence to be reasonable if, as here, it falls within the guideline range. United

States v. Joseph, 709 F.3d 1082, 1105 (11th Cir. 2013) (quotation omitted).

Nonetheless, our review is not toothless. See United States v. Pugh, 515 F.3d

1179, 1191 (11th Cir. 2008) (“[T]he district court’s choice of sentence is not

unfettered.”).

       District courts are required to impose sentences sufficient, but not greater

than necessary, to comply with the factors and purposes set forth in § 3553(a)(2),

which include the need to reflect the seriousness of the offense, promote respect

for the law, provide just punishment for the offense, deter criminal conduct, and

protect the public. United States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016).

In addition, the district court must consider the nature and circumstances of the

offense, the history and characteristics of the defendant, the kinds of sentences

available, the applicable guidelines range, the pertinent policy statements of the

Sentencing Commission, the need to avoid unwarranted sentencing disparities, and

the need to provide restitution to the victim. Id. (citing 18 U.S.C. § 3553(a)(1),

(3)-(7)).

       Notwithstanding the “considerable discretion” that district courts have in

applying these factors and imposing sentence, United States v. Shaw, 560 F.3d

1230, 1238 (11th Cir. 2009) (quotation omitted), “[a] district court abuses its

discretion when it (1) fails to afford consideration to the relevant factors that were


                                          13
             Case: 15-13928      Date Filed: 10/05/2016    Page: 14 of 16


due significant weight, (2) gives significant weight to an improper or irrelevant

factor, or (3) commits a clear error of judgment in considering the proper factors.”

United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (emphasis

added) (quotation omitted). As this Court has said: “A sentence that is based

entirely upon an impermissible factor is unreasonable because such a sentence does

not achieve the purposes of § 3553(a).” United States v. Velasquez Velasquez, 524

F.3d 1248, 1252 (11th Cir. 2008) (per curiam) (quotation omitted).

      Here, the district judge abused his discretion by giving significant (indeed,

dispositive) weight to Plate’s inability to pay restitution. In sentencing Plate to

prison, the district judge stated that he would be “glad under this case to give [her]

probation if [she] had paid back the restitution.” This statement was an obvious

indication of what the judge would have done if she had paid full restitution at (or

before) the sentencing hearing. Indeed, as earlier noted, the government conceded

during oral argument that the record is “very clear” that is exactly what the district

judge meant. See supra note 4. Moreover, the district judge offered to

“immediately convert” Plate’s prison term if she paid the restitution at a later date,

which further showed that the judge gave significant weight and consideration to

her inability to pay restitution at the time of sentencing. And further still, in his

response to this Court’s question on remand, the district judge stressed that the

“substantial outstanding restitution Plate had yet to repay” was a motivating factor


                                           14
               Case: 15-13928        Date Filed: 10/05/2016       Page: 15 of 16


in his original sentencing decision. Her inability to pay restitution in full was an

impermissible factor insofar as it is not among the factors listed in § 3553(a). 6

       It is true that the district judge emphasized the seriousness of Plate’s offense

at sentencing (e.g., by noting that she took advantage of “demented” and “helpless”

victims); and it is also true that the judge said that he saw no reason to depart from

the guidelines. Nevertheless, the record unambiguously shows (and, once again,

the government has expressly admitted) that the district judge would have imposed

a sentence of no further incarceration if Plate had been able to pay the restitution at

or before the sentencing hearing. However this sentence is characterized---whether

it is viewed as a failure to “reward” for paying restitution (as the government says)

or as “punishment” for not paying (as Plate says)---is irrelevant because, in either

case, the district judge clearly gave significant weight to Plate’s inability to pay as

a factor in the sentence that he imposed, and he ended up imposing a prison term




       6
          That is not to say that restitution is irrelevant under Section 3553. To the contrary, as
previously noted, one of the factors the district court has to consider in fashioning a sentence is
“the need to provide restitution to any victims of the offense.” 18 U.S.C. § 3553(a)(7). To say
that the district court must consider the need to provide victims with restitution, however, is not
the same thing as saying the court may sentence the defendant to prison solely because she was
unable to pay the restitution in full. If anything, imposing such a sentence arguably cuts against
that factor. See Daniel Faichney, Comment, Autocorrect? A Proposal to Encourage Voluntary
Restitution Through the White-Collar Sentencing Calculus, 104 J. Crim. L. & Criminology 389,
405 n.76 (2014) (“Section 3553(a)(7) . . . has a utilitarian dimension in that a harsh sentence may
undercut the offender’s ability to work in order to repay her victims.”) (citing United States v.
Rangel, 697 F.3d 795, 803–04 (9th Cir. 2012) (“[T]he district court’s goal of obtaining
restitution for the victims of Defendant’s offense, 18 U.S.C. § 3553(a)(7), is better served by a
non-incarcerated and employed defendant.”) (quotation omitted)).
                                                15
              Case: 15-13928     Date Filed: 10/05/2016    Page: 16 of 16


based solely on that factor, which is not a permissible consideration under Section

3553(a).

                                          III.

      As indicated above, we must vacate Plate’s sentence and remand the case for

resentencing. Because the district judge confirmed and reiterated his consideration

of Plate’s inability to pay restitution as a factor in his order on remand---coupled

with his stated belief that Plate’s arguments on appeal were “frivolous,” even after

having the benefit of reviewing those arguments---it appears the district court may

be unable to disregard its improper consideration of that factor or, at least, that it

may appear so. See United States v. Torkington, 874 F.2d 1441, 1446–47 (11th

Cir. 1989) (per curiam). Thus, we will exercise our supervisory powers and

remand the case for resentencing before a different district court judge.

VACATED AND REMANDED FOR RESENTENCING.




                                           16
