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


6-13-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3904




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"USA v. Shusterman" (2006). 2006 Decisions. Paper 906.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/906


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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 05-3904
                                     ____________

                           UNITED STATES OF AMERICA

                                             v.

                                BETTY SHUSTERMAN,
                                           Appellant
                                    ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. 02:CR-225-2)
                       District Judge: Honorable Anita B. Brody
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 13, 2006

              Before: FISHER, ALDISERT, and LOURIE,* Circuit Judges.

                                 (Filed: June 13, 2006)
                                      ____________

                               OPINION OF THE COURT
                                    ____________




      *
         Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit,
sitting by designation.
LOURIE, Circuit Judge.

      Betty Shusterman (“Shusterman”) appeals from the District Court’s decision

sentencing her to 51 months of imprisonment and ordering her to pay $1.3 million in

restitution for conspiracy to commit bank fraud and mail fraud, bank fraud, mail fraud,

tax evasion, and making false statements on income tax returns. Because the District

Court properly made factual findings that were supported by a preponderance of the

evidence that enhanced the term of Shusterman’s sentence, and the sentence was

reasonable, we will affirm.

      Shusterman was formerly the bookkeeper for Temple Sinai, a synagogue in

Montgomery County, Pennsylvania. The crimes that Shusterman were convicted of, inter

alia, involved writing checks on the temple’s primary bank account, giving the checks to

Barry Wilf (“Wilf”), her accomplice and co-defendant, and having him deposit the checks

into a secondary Temple Sinai bank account that Wilf actually controlled, after which he

withdrew the funds for their personal use. In addition, Shusterman and Wilf engaged in

fraudulent bookkeeping in order to conceal their scheme, viz., entering false explanations

for the checks issued from the temple’s primary account and deposited into the secondary

account. Shusterman and Wilf were also accused of taking donations to the temple and

directly depositing them into the secondary account. Shusterman was also accused of

taking “retirement” payments from the temple’s operating account in addition to her

regular salary even though she was not entitled to any retirement or pension from the

temple.

                                            2
       On April 11, 2002, Shusterman was indicted for her part in the alleged scheme to

defraud Temple Sinai and the federally insured banks that were involved. Shusterman

was also charged with evading personal federal income taxes. On September 30, 2003, a

jury returned a guilty verdict on all 46 counts presented against her, consisting of

conspiracy to commit bank fraud and mail fraud (one count), bank fraud (one count), mail

fraud (34 counts), tax evasion (five counts), and making false statements on income tax

returns (five counts).

       On May 25, 2004, the District Court sentenced Shusterman to 51 months of

imprisonment and ordered her to pay $1.3 million in restitution. In reaching that

sentence, the Court determined that Shusterman’s base offense level for fraud was 6,

which was increased by 11 levels because of a loss of between $800,000 and $1.5 million.

The Court further enhanced Shusterman’s offense level by 2 levels because more than

minimal planning was involved in carrying out the crimes, another 2 levels because the

offense involved a religious organization, and another 2 levels for abuse of trust.

Combined with her tax-related offenses, the Court determined that Shusterman’s final

total offense level was 24. As a defendant with a criminal history in category I, the

sentencing range for Shusterman’s offenses under the United States Sentencing

Guidelines (“Guidelines”) is 51-63 months.

       Shusterman appealed her sentence and, following the United States Supreme

Court’s decision in United States v. Booker, 543 U.S. 220 (2005), this Court remanded

for resentencing. On August 12, 2005, after conducting a second sentencing hearing, the

                                              3
District Court reimposed the same sentence of 51 years imprisonment, a term of

supervised release of five years, restitution in the amount of $1.3 million, and a special

ssessment of $4,600. Shusterman timely appealed her sentence, and we have jurisdiction

pursuant to 18 U.S.C. § 3742(a).

       On appeal, Shusterman does not challenge the sufficiency of the jury’s guilty

verdict. Nor does she dispute that the District Court’s factual findings leading to

enhancement of her prison sentence were supported by a preponderance of the evidence.

Rather, she assigns error to the Court for engaging in any fact finding at all to enhance her

prison sentence, which she asserts should have been made by a jury beyond a reasonable

doubt, viz., the amount of loss caused by the fraud, whether she engaged in more than

minimal planning, and whether she abused a trust. According to Shusterman, the Court’s

factual findings violated her Sixth Amendment rights. Shusterman contends that the

Court should have presented those factual questions to a jury in the form of special

interrogatories.

       We agree with the government that a sentencing court may make factual findings

supported by a preponderance of the evidence relevant to sentencing enhancements, as

the District Court did here. In United States v. Miller, 417 F.3d 358, 362 (3d Cir. 2004),

we noted that the district court in that case, as here, engaged in “a fair amount of judicial

fact finding” in enhancing the defendant’s prison sentence. Nonetheless, we determined

that there was no legal error in the sentencing court’s fact finding, so long as, inter alia,

the court recognized that the Guidelines were advisory rather than mandatory, pursuant to

                                               4
United States v. Booker, 543 U.S. 220 (2005). Miller, 417 F.3d at 362-63; see also

United States v. Cooper, 437 F. 3d 324, 330 (3d Cir. 2006) (stating “[a]s before Booker,

the standard of proof under the guidelines for sentencing facts continues to be

preponderance of the evidence”). Thus, the District Court did not violate Shusterman’s

Sixth Amendment rights by not specifically submitting the enhancement factors for

consideration by a jury. Shusterman does not otherwise contend that the District Court

erred in its consideration of the Guidelines or the sentencing factors under 18 U.S.C.

§ 3553(a).

       Accordingly, we will affirm the District Court’s decision sentencing Shusterman to

51 months of imprisonment, a term of supervised release of five years, restitution in the

amount of $1.3 million, and a special assessment of $4,600.




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