     Case: 09-11227     Document: 00511231794          Page: 1    Date Filed: 09/13/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                        September 13, 2010

                                     No. 09-11227                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

JUDY DARLENE WELCH

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:09-CR-30-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Judy Darlene Welch appeals the 36-month sentence imposed following her
conviction on a guilty plea to willfully failing to report $622,000 on a federal tax
return in violation of 26 U.S.C. § 7206(1). She embezzled those funds from
business partners and employers.
        Welch contends her sentence is unreasonable because the district court
used the nature and seriousness of the embezzlement both to impose a sentence


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-11227      Document: 00511231794   Page: 2   Date Filed: 09/13/2010

                                  No. 09-11227

enhancement under the advisory Sentencing Guidelines and to justify a six-
month upward variance from the Guidelines.
      Although post-Booker, the Guidelines are advisory only, and an ultimate
sentence, “[r]egardless of whether the sentence imposed is inside or outside the
Guidelines range”, is reviewed for reasonableness under an abuse-of-discretion
standard, the district court must still properly calculate the advisory guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 552 U.S. 38, 49-51 (2007).      In that respect, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). On the other hand, an issue
raised on appeal that was not raised in district court is reviewed only for plain
error. E.g.,United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007).
      Pursuant to Gall, we engage in a bifurcated review, considering both the
procedural propriety and substantive reasonableness of the sentence imposed by
the district court. United States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th
Cir. 2009). Welch does not contend that the extent of the variance rendered her
sentence substantively unreasonable. Instead, she maintains her sentence is
procedurally unreasonable, claiming the district court erroneously failed to
recognize that the embezzlement on which it based the variance was already
accounted for in the guidelines calculation in the form of the base offense level,
the two-level criminal-source enhancement, and the two-level abuse-of-trust
enhancement. Because Welch failed, in district court, to assert error allegedly
caused by consideration of embezzlement in the base offense level and the
criminal-source enhancement, those contentions are subject to review under the
plain-error standard. In any event, even reviewed under the abuse of discretion
standard, they fail.



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                                  No. 09-11227

      The district court is to consider the nature, circumstances, and seriousness
of the offense in determining the appropriate sentence.          See 18 U.S.C. §
3553(a)(1)-(2) (2010). It imposed the upward variance on the ground that the
advisory Sentencing Guidelines range did “not reflect the actual seriousness of
the offense” because the embezzlement was not prosecuted and did not “enter
into the determination of the guidelines, except insofar as the breach of fiduciary
duty. . . .”   The district court was entitled to base its variance upon the
embezzlement, even if that offense was already accounted for in the Guidelines
calculation. United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008); United
States v. Williams, 517 F.3d 801, 810-11 (5th Cir. 2008) (holding that a district
court may rely upon factors already incorporated by the Guidelines to support
a non-Guidelines sentence).
      Moreover, the presentence investigation report, Welch’s objections, and the
sentencing transcript reflect that the district court fully considered and rejected
Welch’s objections. The district court acknowledged that the embezzlement was
accounted for by the abuse-of-trust enhancement, which the court called “the
breach of fiduciary duty”. The court nonetheless concluded that an additional
six months of imprisonment was warranted under § 3553(a) to reflect the nature
and seriousness of the crime. This was not an abuse of discretion.
      AFFIRMED.




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