                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-27-2009

USA v. Susan Barrett
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2623




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"USA v. Susan Barrett" (2009). 2009 Decisions. Paper 1306.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-2623


                           UNITED STATES OF AMERICA

                                            v.

                                  SUSAN BARRETT,
                                            Appellant


                    On Appeal from the United States District Court
                            for the District of New Jersey
                           D.C. Criminal No. 06-cr-0610-1
                          (Honorable Joseph H. Rodriguez)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    March 2, 2009

    Before: SCIRICA, Chief Judge, SLOVITER and HARDIMAN, Circuit Judges.

                                  (Filed May 27, 2009)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

      Susan Barrett pleaded guilty to one count of bank theft in violation of 18 U.S.C. §

2113(b), for which she was sentenced to thirty-seven months of imprisonment. Barrett

appeals her sentence, contending the District Court committed procedural error by failing
to afford any weight to other factors required under 18 U.S.C. § 3553(a). We disagree

and will affirm.1

                                             I.

       As bank manager of Commerce Bank in Sicklerville, New Jersey, Barrett made

unauthorized withdrawals from the personal and business accounts of Frank Fedele

during his incapacity caused by a stroke and after his death. To cover debits Barrett made

from Fedele’s account, she also made unauthorized withdrawals from the account of

Fedele’s daughter, Diane Fedele.

       Barrett pleaded guilty to one count of bank theft. Facing an advisory Guideline

range from thirty-seven to forty-six months imprisonment, Barrett asked for an eighteen-

month imprisonment with supervised release because of her acceptance of responsibility

as exemplified by partial restitution to Commerce Bank and the Fedele family,

cooperation with the FBI and bank officials, and current employment indicating lack of

recidivism. The District Court rejected these arguments and imposed a within-Guidelines

sentence.

       We review the District Court’s sentencing decision for abuse of discretion. Gall v.

United States, 128 S. Ct. 586, 591 (2007).2 Because the trial court possesses a “superior


   1
    We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).
   2
    Under Gall, we review the sentence to ensure

       the district court committed no significant procedural error, such as failing
                                                                               (continued...)

                                             2
vantage point” in reviewing the facts and their import to the case, we accord the district

court due deference in sentencing decisions. United States v. Tomko, 562 F.3d 558, 566

(3d Cir. 2009) (en banc).

                                             II.

       Barrett contends the District Court committed procedural error by failing to give

meaningful consideration to several mitigating factors in its within-guidelines sentencing.

“After giving both parties an opportunity to argue for whatever sentence they deem

appropriate, the district judge should then consider all of the § 3553(a) factors to

determine whether they support the sentence requested by a party . . . [and] make an

individualized assessment based on the facts presented.” Gall, 128 S. Ct. at 596–97.3


   2
    (...continued)
        to calculate (or improperly calculating) 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 — including an explanation for any deviation from the
        Guidelines range. Assuming that the district court’s sentencing decision is
        procedurally sound, the appellate court should then consider the substantive
        reasonableness of the sentence imposed.

128 S. Ct. at 597. Barrett does not challenge the substantive reasonableness of her
sentence.
   3
    Under 18 U.S.C. § 3553(a), the relevant factors are: “(1) the nature and circumstances
of the offense and the history and characteristics of the defendant; (2) the need for the
sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B) to afford adequate deterrence to
criminal conduct; (C) to protect the public from further crimes of the defendant; and (D)
to provide the defendant with needed educational or vocational training, medical care, or
other correctional treatment in the most effective manner; (3) the kinds of sentences
                                                                                (continued...)

                                              3
       In recognizing the possibility of a sentence which varies from the Sentencing

Guidelines, the District Court noted the advisory nature of the Sentencing Guidelines as

set forth in United States v. Booker, 543 U.S. 220 (2005). Likewise, it properly

considered the mitigating factors of 18 U.S.C. § 3553(a) in imposing a within-Guidelines

sentence. The court started by calculating the Guidelines range: “Now, we’re dealing

with the guidelines, which obviously are advisory and no longer mandatory, which simply

means that the guidelines give you a starting base. The base has to be recognized as a

comprehensive calculation and quantification of a lot of relevant factors. The relevant

factors create the base.” The court then expressly considered the factors outlined in 18

U.S.C. § 3553(a) with regard to Barrett’s bank theft. Namely, the court examined the

need for a sentence that promotes respect for the law and provides adequate deterrence to

others through a punishment of imprisonment. It also took into account the need to avoid

unwarranted sentencing disparities within the wide range of sentencing of white collar

offenders, as well as Barrett’s restitution efforts that began before her plea was entered.

Finally, the court addressed Barrett’s culpability, noting that although “a lot of that’s

already calculated within the [Guidelines] range,” Barrett’s deception was a factor of

concern for appropriate sentencing. This discussion provides “appropriate and judicious




   3
    (...continued)
available; (4) the kinds of sentence and the sentencing range established for . . . the
applicable category of offense committed by the applicable category of defendant as set
forth in the guidelines.”

                                              4
consideration” of the § 3553(a) factors in light of Barrett’s circumstances. United States

v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007).

       The District Court reasonably considered Barrett’s mitigating factors. The court is

not required to address the specific weight it gave to each factor; instead, it need only

“articulate enough to satisfy the appellate court that [it] has 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). Here, the District Court

adequately articulated its reasoning for sentencing and gave meaningful consideration to

the § 3553(a) factors.

                                             III.

       Because the District Court made no procedural error in sentencing Barrett, we will

affirm the judgment of conviction and sentence.




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