            Case: 17-14543   Date Filed: 07/11/2018    Page: 1 of 8


                                                            [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14543
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:15-cr-00332-ELR-LTW-1



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

versus

RACHEL HAILEY,

                                                Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (July 11, 2018)

Before JORDAN, HULL, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Rachel Hailey appeals her 15-month sentence, imposed at the bottom end of

her advisory guideline range, after pleading guilty to one count of embezzlement of

mail by a United States Postal Service employee, in violation of 18 U.S.C. § 1709.

On appeal, she argues that her sentence is both procedurally and substantively

unreasonable. After review of the record and the parties’ briefs, we affirm Ms.

Hailey’s sentence.

                                           I

      In February of 2013, Ms. Hailey, an employee for the United States Postal

Service, was approached by the United States Postal Inspection Service—a law

enforcement agency charged with enforcing the laws that defend the nation’s mail

system—to request assistance with an ongoing investigation. One home on her

mail route was the focus of an investigation into drug trafficking. She agreed to

assist in the investigation by informing inspectors whenever a package was to be

delivered to the home, photographing the package, and providing information on

the home’s occupants and the vehicles associated with the address.

      In March of 2013, a package containing 26.9 pounds of marijuana came in to

the post office to be delivered to the target residence. Instead of notifying the

inspectors, Ms. Hailey scanned the package as “delivered” and took it with her.

When questioned by the inspectors, she denied the allegations, but admitted taking

the package later that same day.

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      Ms. Hailey was indicted in September of 2015. She recanted her admissions

during an interview and entered a plea of not guilty. Two years later, Ms. Hailey

pled guilty and proceeded to sentencing.

      To calculate the advisory guideline range, the district court began by

calculating Ms. Hailey’s base offense level at six under U.S.S.G. § 2B1.1. Ms.

Hailey received a four-level increase for loss amount exceeding $15,000 but less

than $40,000 under § 2B1.1(b)(1)(C). The district court then applied a cross

reference under § 2B1.1(c)(1)(A), which brought Ms. Hailey’s base offense level

to 14 because the amount of marijuana was more than ten kilograms but less than

twenty. She also received a two-level increase for violating a position of trust and

was granted a three-level reduction for acceptance of responsibility. With a total

offense level of 13 and a criminal history category of II, her advisory guideline

range was 15 to 21 months’ imprisonment. The district court imposed a sentence

of 15 months’ imprisonment.

                                           II

      We review a sentence “under an abuse-of-discretion standard.”            United

States v. Foster, 878 F.3d 1297, 1308 (11th Cir. 2018) (quoting Gall v. United

States, 552 U.S. 38, 51 (2007)). “A district court abuses its discretion when it (1)

fails to afford consideration to relevant factors that were due significant weight, (2)

gives significant weight to an improper or irrelevant factor, or (3) commits a clear


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error of judgment in considering the proper factors.” United States v. Irey, 612

F.3d 1160, 1189 (11th Cir. 2010) (en banc).

      This necessarily involves a two-step process. First, we review the district

court’s sentence for any “significant procedural error.” Foster, 878 F.3d at 1308.

“If the ‘sentencing decision is procedurally sound, the appellate court should then

consider the substantive reasonableness of the sentence imposed.’” Id. (quoting

Gall, 552 U.S. at 51). See also United States v. Mathews, 874 F.3d 698, 704 (11th

Cir. 2017) (following this two-step process).

                                         III

      As the Supreme Court directs us in Gall, we

      must first ensure that the district court committed no significant
      procedural error, such as failing to calculate . . . the Guidelines range,
      treating the Guidelines as mandatory, failing to consider the § 3553(a)
      factors, selecting a sentence based on clearly erroneous facts, or
      failing to adequately explain the chosen sentence[.]

552 U.S. at 51. Here, we conclude that the district court properly calculated the

guidelines range, treated the guidelines as advisory, considered all the § 3553(a)

factors, and imposed a sentence on the bottom end of the advisory guideline range

that was supported by the statutory factors.

      At the sentencing hearing, Ms. Hailey offered background context into her

personal life as mitigating evidence, specifically citing her lack of criminal history




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for most of her life. She argues now that the court inappropriately used that

information offered in mitigation as aggravating evidence.

      It is squarely within the district court’s discretion how to receive mitigation

arguments. See Gall, 552 U.S. at 51 (“The sentencing judge is in a superior

position to find facts and judge their import” because “[t]he judge sees and hears

the evidence, makes credibility determinations, has full knowledge of the facts, and

gains insights not conveyed by the record.”) Cf. Moore v. Balkcom, 716 F.2d

1511, 1521–22 (11th Cir. 1983) (“The sentencing authority can assign what it

deems the appropriate weight to particular mitigating circumstances.”).          The

district court may decide for itself what evidence is mitigating and what weight to

assign it.   See, e.g., United States v. Rosales-Bruno, 789 F.3d 1249, 1259

(affirming sentence, while noting that the district “court exercised its authority to

assign heavier weight to several other sentencing factors”); United States v.

Williams, 526 F.3d 1312, 1323 (11th Cir. 2008) (affirming sentence, explaining

that “it [was] within the district court’s discretion to decide how much weight to

give each [ ] factor”). We conclude that the district court did not err in its

consideration of the mitigation arguments offered by Ms. Hailey’s counsel.

      Ms. Hailey also argues that the district court improperly considered her

recantation and perceived “habit of blaming others” as part of its sentencing

considerations. She relies upon United States v. Wade, 458 F.3d 1273, 1280 (11th

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Cir. 2006), and United States v. Singh, 877 F.3d 107, 119 (2d Cir. 2017), to support

her contentions that the district court procedurally erred in this respect. But this

case is unlike Wade. There, “[t]he district court based its denial of the reduction

for acceptance of responsibility solely on Wade’s pre-indictment criminal activity.”

Wade, 458 F.3d at 1280 (emphasis added). Here, not only did the district court

consider a variety of factors in its decision whether to grant a variance, but the

court also ultimately granted the reduction for acceptance of responsibility. Singh

is also unhelpful to Ms. Hailey because there the district court, although granting a

reduction for acceptance of responsibility, relied upon mitigation evidence and a

perceived lack of remorse to justify an upward variance “nearly three times the top

of the Guidelines range.” 877 F.3d at 110. Here, the district court did not vary

upward and, although questioning whether Ms. Hailey had a habit of blaming

others, stated that she was not “ready to say that this is the case.” D.E. 70 at 24.

      In sum, we are unpersuaded that the district court committed procedural

error when sentencing Ms. Hailey.

                                          IV

      We now review the substantive reasonableness of the sentence. Under an

abuse-of-discretion standard, we will vacate a sentence only if “we are left with the

definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies


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outside the range of reasonable sentences dictated by the facts of the case.” United

States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). “We 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).

      Ms. Hailey’s 15-month sentence was on the bottom end of the advisory

guidelines range. We “ordinarily expect a sentence within the Guidelines range to

be reasonable.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

      Nevertheless, Ms. Hailey argues that her sentence is substantively

unreasonable because the district court did not properly balance all of the § 3553(a)

factors, resulting in an overly harsh sentence. Specifically, she contends that the

district court failed to adequately consider her lack of criminal history and her role

as the sole provider of economic and moral support within her family. On the

contrary, the record indicates that the court specifically considered these factors—

including the fact that Ms. Hailey committed the instant offense while on probation

for a DUI conviction—when hearing her counsel’s mitigation arguments and

expressed concern over the trajectory of her conduct.          As we have already

mentioned, “[t]he decision about how much weight to assign a particular

sentencing factor is committed to the sound discretion of the district court.”


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Rosales-Bruno, 789 F.3d at 1254. The district court’s refusal to vary downward on

these grounds is not a clear error in judgment. See, e.g., United States v. Martinez-

Gonzalez, 663 F.3d 1305, 1311–12 (11th Cir. 2011) (affirming the substantive

reasonableness of the sentence imposed despite mitigation arguments that the

defendant’s family would “face financial hardship”).

      It is Ms. Hailey’s “burden [to] show[ ] that the sentence is unreasonable in

light of the entire record, the § 3553(a) factors, and the substantial deference

afforded sentencing courts.”    Rosales-Bruno, 789 F.3d at 1256 (citing United

States v. Langston, 590 F.3d 1226, 1236 (11th Cir. 2009)). She has not met that

burden.

                                         V

      In sum, we determine that Ms. Hailey’s sentence is both procedurally and

substantively reasonable and, accordingly, affirm.

      AFFIRMED.




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