                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-11-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1402




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-1402


                           UNITED STATES OF AMERICA

                                            v.

                                    PATTI I. BRAUN,

                                                 Appellant


                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                        (D.C. Criminal Action No. 04-cr-00163)
                     District Judge: Honorable Terrence F. McVerry


                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 27, 2006

                    Before: AMBRO and FUENTES, Circuit Judges,
                             and IRENAS,* District Judge

                              (Opinion filed: May 11, 2006)


                                        OPINION

AMBRO, Circuit Judge

       Patti Braun appeals her sentence entered by the United States District Court for the



       *
         Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
sitting by designation.
Western District of Pennsylvania. She argues that the Court applied the Federal

Sentencing Guidelines in a mandatory (as opposed to advisory) way in violation of

United States v. Booker, 543 U.S. 220 (2005). For the reasons stated below, we disagree

and thus affirm the judgment of the District Court.1

                                             I.

       As we write solely for the parties, we discuss only those facts necessary to our

decision. Braun was convicted, pursuant to a plea agreement, of theft from a local

government agency receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(A).

The parties stipulated that the loss associated with the charged conduct was between

$120,000 and $200,000. The District Court found that, “[u]nder the now advisory

provisions” of the Guidelines, Braun’s base offense level was six. The Court increased

this by ten levels for the stipulated loss amount and by two levels for abuse of a position

of public trust, for an adjusted offense level of eighteen, which was in turn reduced by

three levels for acceptance of responsibility. Her criminal history category was I. The

Court noted that “[t]he recommended guideline provisions” yielded a range of eighteen to

twenty-four months, and sentenced her to an eighteen-month term of imprisonment, three

years supervised release, restitution in the amount of $136,396.87, and a special

assessment of $100.



       1
       We have jurisdiction to review Braun’s sentence for unreasonableness under 18
U.S.C. § 3742(a)(1) (authorizing the appeal of sentences “imposed in violation of law”).
United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).

                                             2
       Braun argues that “although the sentencing judge recognized that the federal

sentencing guidelines were . . . only to be used in an advisory manner, the Court

nonetheless treated and applied the guidelines in a mandatory fashion.” In support of this

assertion, Braun cites: the Court’s references to the base offense level; the increases and

reductions for loss amount, abuse of public trust, and acceptance of responsibility; her

criminal history category; and the Guidelines range.

                                             II.

       We review challenges to sentences for reasonableness. Booker, 543 U.S. at 264.

In Booker, the Supreme Court held that the Federal Sentencing Guidelines are advisory.

Id. at 259-60. Accordingly, district courts must not apply the Guidelines in a mandatory

fashion, but are required to consider them, as well as the other factors set forth in 18

U.S.C. § 3553(a), in determining an appropriate sentence. Id. at 259; see also United

States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006) (post-Booker, “[t]he record must

demonstrate that the trial court gave meaningful consideration to the § 3553(a) factors”).

The § 3553(a) factors a court must consider 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 . . . .

                                              3
18 U.S.C. § 3553(a) (emphasis added).

         Here, Braun does not challenge the adequacy of the Court’s consideration of the §

3553(a) factors, but instead suggests that the mere reference to the Guidelines “clearly

indicates that the Court was applying [them] in a mandatory fashion.” This argument we

do not buy. The Court here explicitly recognized that the Guidelines are “now

advisory,” and referred to the “recommended” Guidelines provisions when entering

Braun’s sentence. Its articulation of the advisory nature of the Guidelines post-Booker is

in no way inconsistent with its consideration – as required by Booker and Cooper – of the

applicable Guidelines range or its ultimate decision to sentence Braun within the advisory

range.

                                          * * * * *

         For the reasons stated herein, we affirm the judgment of the District Court.




                                               4
