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


2-20-2009

USA v. Luna
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4091




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"USA v. Luna" (2009). 2009 Decisions. Paper 1844.
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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-4091


                           UNITED STATES OF AMERICA

                                           v.

                                 ANABELLE LUNA,
                                            Appellant


                    On Appeal from the United States District Court
                            for the District of Delaware
                          D.C. Criminal No. 07-cr-0013-2
                           (Honorable Sue L. Robinson)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 26, 2009

         Before: SCIRICA, Chief Judge, AMBRO and SMITH, Circuit Judges.

                                Filed: February 20, 2009


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

      Anabelle Luna pled guilty to one count of wire fraud in violation of 18 U.S.C. §

1342, and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A. She

was sentenced to thirty-seven months imprisonment for wire fraud and twenty-four
months imprisonment for the aggravated identity theft, to be served consecutively as

required by 18 U.S.C. § 1028A. Luna appeals her sentence, contending the District Court

incorrectly weighed her mitigating circumstances and treated the guidelines as mandatory.

We disagree and will affirm.1

                                               I.

         Luna participated in a scheme in which fraudulent payroll checks were issued for

her and her co-defendants’ benefit. After she entered her guilty plea, Luna requested a

downward departure from the guidelines range and made several objections to the pre-

sentence investigation report (PSR). At sentencing, Luna withdrew all the objections

except one—that her criminal history category overrepresented the seriousness of her past

criminal conduct. The District Court rejected her arguments and imposed a within-

guidelines sentence.

         In reviewing a criminal sentence, an appellate court should:

         first ensure that the district court committed no significant procedural error,
         such as failing 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 under an
         abuse-of-discretion standard.

Gall v. United States, 128 S.Ct. 586, 597 (2007).


   1
       We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).

                                                2
                                               II.

         Luna alleges two procedural errors: first, failure to analyze the relevant downward

departure sentencing factors and second, treating the guidelines as mandatory. In Nelson

v. United States, the Supreme Court held “the sentencing court must first calculate the

Guidelines range, and then consider what sentence is appropriate for the individual

defendant in light of the statutory sentencing factors, 18 U.S.C. § 3553(a),2 explaining any

variance from the former with reference to the latter.” No. 08-5657, slip op. at 2 (U.S.

Jan. 26, 2009), available at 2009 U.S. LEXIS 872, at *2 (footnote added); see also United

States v. Gunter, 462 F.3d 237, 243 (3d Cir. 2006) (outlining a substantially identical

process for district courts to follow).

         The District Court did not abuse its discretion by imposing a within-guidelines

sentence, nor did it disregard Luna’s arguments for a downward departure. Before the




   2
       Under the statute, 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 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 . . . .(6) the need to avoid unwarranted
         sentence disparities among defendants with similar records who have been found
         guilty of similar conduct; and (7) the need to provide restitution to any victims of
         the offense.

                                               3
District Court, Luna argued that her criminal history was overstated because it was based

upon two crimes for which she did not serve any jail time. She contends the court never

ruled on this objection. Luna also contends the District Court failed to give adequate

consideration to any of the § 3553(a) factors. The record belies both of these contentions.

       The District Court carefully considered the two steps outlined in Nelson. It first

considered and calculated the guidelines range; it then considered Luna’s objections to

the PSR. Contrary to Luna’s contention, the District Court specifically stated that “[w]ith

respect to the assignment of criminal history points to the 1998 conviction and the 1999

conviction, I believe these points were assigned consistent with the sentencing guidelines

and, therefore, that objection is overruled.”

       With regard to Luna’s request for a downward departure, Luna and the

government submitted sentencing memoranda and addressed the court. Luna’s brothers

testified in favor of a downward departure. In the end, however, the District Court, in its

reasoned and sound discretion, determined a within-Guidelines sentence was appropriate.

Although the District Court did state that “personal history and characteristics is [sic] the

one factor under 3553(a) that are not really taken into account by the sentencing

guidelines,” it also stated that while “the defendant presents herself as a very sympathetic

person, . . . I don’t feel under these circumstances that a defendant’s personal

characteristics and history are so exceptional that I feel comfortable varying the sentence,

because that would also throw askew the sentencings of the two other primary people



                                                4
involved in the scheme.” In the previous statement alone, the District Court took into

consideration at least two different § 3553(a) factors: the need to avoid unwarranted

sentencing disparities (§ 3553(a)(6)) and Luna’s background and personal circumstances

(§ 3553(a)(1)).

       A sentencing court need not list every single § 3553(a) factor specifically; instead,

the “sentencing judge should set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority. . . . Where a matter is as conceptually simple as in the case at

hand and the record makes clear that the sentencing judge considered the evidence and

arguments, we do not believe the law requires the judge to write more extensively.” Rita

v. United States, 127 S.Ct. 2456, 2468-69 (2007); accord United States v. Cooper, 437

F.3d 324, 329 (3d Cir. 2006).

       Morever, the District Court acknowledged its legal authority to depart downward

from the guidelines range, implicitly recognizing the advisory nature of the Sentencing

guidelines under United States v. Booker, 543 U.S. 220 (2005). The District Court made

no procedural error nor was its decision substantively unreasonable.

       Accordingly, we will affirm the judgment of conviction and sentence.




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