12-3179-cr
United States v. Brass

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
12th day of June, two thousand thirteen.

Present:
                 RALPH K. WINTER,
                 PETER W. HALL,
                            Circuit Judges,
                 WILLIAM K. SESSIONS III,
                            District Judge.*

____________________________________________________

United States of America,

               Appellee,

v.                                                                  No. 12-3179-cr

Robin Bruhjell Brass,

          Defendant–Appellant.
____________________________________________________


FOR APPELLANT:                ALEXANDER EISEMANN (Jonathan J. Einhorn, on the brief),
                              Law Office of Alexander Eisemann, New York, NY.

*
 The Honorable William K. Sessions III, of the United States District Court for the District of
Vermont, sitting by designation.


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FOR APPELLEE:           SUSAN L. WINES, Assistant United States Attorney (Sandra S.
                        Glover, Assistant United States Attorney, of counsel), for David B.
                        Fein, United States Attorney for the District of Connecticut, New
                        Haven, CT.
____________________________________________________


       Appeal from a judgment of the United States District Court for the District of

Connecticut (Chatigny, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant–Appellant Robin Bruhjell Brass appeals from a judgment filed July 31, 2012,

sentencing her principally to 96 months’ imprisonment. On appeal, Brass argues that her

sentence was procedurally defective because the district did not give her notice of an alleged

upward departure and that she was punished twice for the same conduct. We assume the parties’

familiarity with the underlying facts, the procedural history, and the issues presented for review.

       We review a district court’s sentencing decision for procedural and substantive

reasonableness. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). A

sentencing decision is procedurally unreasonable when a district court “makes a mistake in its

Guidelines calculation, does not consider the § 3553(a) factors, or rests its sentence on a clearly

erroneous finding of fact.” United States v. Hsu, 669 F.3d 112, 120 (2d Cir. 2012) (internal

quotation marks and ellipses omitted); see also Gall v. United States, 552 U.S. 38, 51 (2007).

We review the district court’s legal determinations de novo, see Hsu, 669 F.3d at 120, since

interpretation of the Guidelines is a matter of law, see United States v. Legros, 529 F.3d 470, 474

(2d Cir. 2008). We review the substantive reasonableness of a district court's sentence for abuse

of discretion, and we take into account the totality of the circumstances, including the extent of

any variance from the Guidelines range. United States v. Douglas, 713 F.3d 694 (2d Cir. 2013)


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(internal quotation marks omitted). We set aside a district court’s sentence as substantively

unreasonable only if affirming it “would . . . damage the administration of justice because the

sentence imposed was shockingly high, shockingly low, or otherwise unsupportable as a matter

of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).

       First, Brass contends that her above-Guidelines sentence was procedurally defective

because the sentencing judge did not give advance notice of a contemplated upward departure

under Federal Rule of Criminal Procedure 32(h). We disagree. Rule 32(h) requires that “before

a district court can depart upward on a ground not identified as a ground for departure either in

the presentence report or in a prehearing submission by the Government, Rule 32 requires that

the district court give the parties reasonable notice that it is contemplating such a ruling.” Burns

v. United States, 501 U.S. 129, 138 (1991). However, the Supreme Court has held that this

notice rule applies only to departures under the Guidelines, not variances, because the Guidelines

are advisory and “neither the Government nor the defendant may place the same degree of

reliance on the type of ‘expectancy’ that gave rise to a special need for notice in Burns.” Irizarry

v. United States, 553 U.S. 708, 713-14 (2008).

       Here, the district court based its decision on a careful consideration of the § 3553(a)

factors. Although at times the district court used the term “departure,” the court unequivocally

stated in its decision that “[t]he Court imposes a non-Guidelines sentence.” Indeed, Brass too

confusedly refers to the sentence as “[a] non-Guidelines sentence of 96 months” on the first page

of her brief, before also referring to it as an upward departure. Nonetheless, even though the

district court used both “departure” and “variance” to describe its sentence, inconsistently

applied terminology in this case is not a basis for finding error and the record is clear that the

sentence was a variance. See United States v. Keller, 539 F.3d 97, 100 (2d Cir. 2008) (noting




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that while the court used both “departure” and “variance” to describe its sentence, it was clear

from the record that the sentence was a variance, and stating that “[w]e see no error whatsoever

in the District Court’s use of the framework and terminology of the Guidelines in the course of

exercising its variance discretion”). As a result, Brass’s argument necessarily fails because a

district court is not required to give a defendant advance notice of its intention to impose an

upward variance.

       Brass next argues that the district court effectively “punished [her] twice for the same

conduct” when it both assessed enhancements for loss, abuse of trust, vulnerable victim, and

obstruction of justice in calculating the Guidelines range and relied on similar aspects of her

criminal conduct in deciding to impose an above-Guidelines sentence. This argument is

unavailing. In affirming an upward departure in a case similar to this one, we held that while the

Guidelines may “adequately consider[] the kind of harm suffered” such as “the loss of substantial

assets by an individual,” they do not necessarily “adequately consider[] the degree of harm.”

United States v. Kaye, 23 F.3d 50, 53 (2d Cir. 1994) (discussing how enhancements for extent of

financial loss, abuse of trust, and vulnerable victim do not always properly consider the degree of

harm or consequences of the criminal conduct). In Kaye, we rejected a defendant’s argument

that the district court had double-counted the harm to the victim in assessing enhancements for

loss, abuse of trust, and vulnerable victim and also assessing a two-level upward departure for

the degree of harm the fraud caused the victim. Id. We find this logic equally persuasive in a

case such as this one where an upward variance was based on the degree of harm, even though

such factual predicates may also have served as the basis for the assessment of enhancements for

the kind of harm considered in computing the offense level.




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       Here, the district court made clear that it believed the case to be “extraordinary by any

measure” due to the harm to numerous victims. Indeed, the district court believed that the

“remarkably brazen criminal conduct” was “conscience shocking,” noting with specific detail

and reference to facts precisely why it believed the Guidelines insufficient. These factors

included that Brass had stolen from more than ten victims but had not received an enhancement

to that effect, that the victims suffered an extraordinary degree of harm, that Brass continued to

hold herself out as a legitimate investment professional and posed a high likelihood for

reoffense, that Brass continued to steal when she knew the severity of the consequences and her

own inability to repay, and that she even stole after she knew law enforcement was investigating

her fraud. On this record, we do not find the non-Guidelines sentence to be unreasonable.

       We note also that, prior to oral argument, Brass filed a motion urging us to permit her to

file a supplemental brief and to defer decision in this appeal until she had filed, and the district

court had decided, a motion under 28 U.S.C. § 2255 asserting ineffectiveness of trial counsel.

We denied the motion to hold the appeal in abeyance and deferred deciding whether to permit

supplemental briefing. Brass stated at oral argument that she no longer found it necessary to file

a supplemental brief. We therefore DENY that motion. Brass did, however, further intersperse

her oral argument with suggestions, both implicit and explicit, that we reconsider our denial of

her motion to hold this appeal in abeyance given her desire to file a section 2255 motion. We

decline to do so and note that our disposition does not prejudice her filing such a motion in the

future. We express no opinion regarding the merits of any such motion that may be forthcoming.




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       We have considered all of Brass’s remaining arguments and find them to be without

merit. The judgment of the district court is AFFIRMED.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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