     Case: 10-51026     Document: 00511561635         Page: 1     Date Filed: 08/04/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           August 4, 2011
                                     No. 10-51026
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

KATINA ROCHELLE CANDRICK, also known as Katina Lofton,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:09-CR-178-1


Before DAVIS, WIENER, and STEWART, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Katina Rochelle Candrick pleaded guilty to unlawful
possession of fraudulent identification with the intent to commit bank fraud, in
violation of 18 U.S.C. § 1028(a)(7) (count one), and to conspiracy to unlawfully
possess and use another’s identification with the intent to commit bank fraud,
in violation of 18 U.S.C. § 1028(f). She was sentenced to 60 months on count one
and to 120 months on count two, to be served consecutively, for an aggregate
term of 180 months, which exceeded the advisory guidelines range. Candrick

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 10-51026

now challenges her sentence on numerous grounds, none of which were asserted
in the district court. We therefore review her arguments for plain error only.
See Puckett v. United States, 129 S. Ct. 1423, 1428 (2009). To show plain error,
Candrick must show a forfeited error that is clear or obvious and that affects her
substantial rights. Id. at 1429. If she makes such a showing, we have the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
       Candrick contends that the district court erred in assessing a 10-level
enhancement under U.S.S.G. § 2B1.1(b)(1)(F) based on the determination that
she caused losses in excess of $120,000. She asserts that the inclusion of
$62,365.58 in notice fees that her former employer, Med Assets, paid to notify
its clients of the security breach caused by her offense was improperly included
in the loss amount. She reasons that such fees are analogous to investigative
costs incurred primarily to aid the government in its prosecution, which are
specifically excluded from the loss calculation under § 2B1.1, comment.
(n.3(D)(ii)).
       Nothing in the record supports Candrick’s assertion. Instead, the PSR
indicates that Med Assets notified its clients of the security breach solely for its
own business interests and its clients’ benefit, not to aid the government in its
prosecution, much less for the primary purpose of doing so, as is required for
exclusion. See § 2B1.1, comment. (n.3(D)(ii)). The PSR is reliable evidence on
which to base the loss calculation, and Candrick has presented nothing to rebut
it. See United States v. Ford, 558 F.3d 371, 377 (5th Cir. 2009). Moreover, other
circuits have found that similar costs incurred by victim employers following an
employee’s fraud are properly included in the § 2B1.1 loss calculation. See, e.g.,
United States v. DeRosier, 501 F.3d 888, 895-96 & n.11 (8th Cir. 2007).
Candrick’s alternative argument that there are insufficient facts on which the
court could base its loss finding is unavailing, as the question is one of fact which



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                                  No. 10-51026

can never give rise to plain error. See United States v. Lopez, 923 F.2d 47, 50
(5th Cir. 1991).
      Candrick next contends that her sentence is unreasonable because the
district court failed to give adequate reasons for its variance, urging that the
court erroneously relied on a single 18 U.S.C. § 3553(a) factor, viz., her criminal
history. The record belies her assertion. Although the district court emphasized
at sentencing that Candrick had amassed a criminal history well in excess of
that contemplated by the Guidelines, it further stated that it had considered all
of the circumstances of the case. The court also specified, in the postjudgment
Statement of Reasons (SOR), that it had relied on the nature and circumstances
of the offense and the history and characteristics of the defendant, as well as the
need for the sentence to reflect the seriousness of the offense, to promote respect
for the law, to provide just punishment, and to protect the public. Thus,
contrary to Candrick’s contention, the district court did not rely on but a single
sentencing factor to justify its sentence.
      Additionally, the district court’s SOR was sufficient to support the
variance. It adopted the PSR and stated that it was choosing a non-guidelines
sentence based on the aforementioned factors. Candrick’s challenge to the
district court’s imposition of consecutive sentences is unavailing as well. The
district court had the discretion to impose consecutive sentences under 18 U.S.C.
§ 3584 as part of its decision to impose a non-guideline sentence in light of
§ 3553(a) factors, and we defer to that decision. See United States v. Saldana,
427 F.3d 298, 308-09 n.41 (5th Cir. 2005); United States v. Ronquillo, 508 F.3d
744, 750-51 (5th Cir. 2007).
      The true nature of Candrick’s argument is that the extent of the district
court’s variance, including the decision for her sentences to run consecutively,
was substantively unreasonable. She urges that her sentence is greater than
necessary to achieve the sentencing goals of § 3553(a) and fails to account for her
personal history and characteristics, including her dependency on prescription

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drugs, her need for drug rehabilitation, and her need to make restitution, which
will be impossible if she is incarcerated for such a lengthy term.
      There is no indication that the court failed to account for a factor that
should have received significant weight, gave significant weight to any improper
factor, or made a clear error of judgment in balancing the relevant factors. See
United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).            Contrary to
Candrick’s assertion, the SOR makes plain that the district court did not fail to
consider her personal characteristics. To the extent that she seeks to have us
reweigh the § 3553(a) factors, her contention is without merit. See Gall, 552
U.S. 38, 47, 51-52 (2007).
      Additionally, considering the sentencing factors under § 3553(a), the
extent of the district court’s departure was not unreasonable. Candrick engaged
in an extensive scheme to appropriate the identities of at least 22 victims and
used them to defraud at least 12 banks and businesses throughout the state of
Texas, causing more than $160,000 in losses. Prior to and during the scheme,
she acquired an extensive criminal history, accumulating more criminal history
points than the Guidelines contemplate for the highest possible criminal history
score. As the district court implicitly determined, both Candrick’s willingness
to continue violating the law after so many convictions and her conduct in the
instant scheme confirm the need for a lengthy sentence, (1) to reflect the
seriousness of the offense, (2) to promote respect for the law, (3) to deter future
criminal conduct, and (4) to protect the public from her future criminal acts. See
§§ 3553(a)(1) and (2)(A), (B), & (C); see also United States v. Zuniga-Peralta, 442
F.3d 345, 347-48 (5th Cir. 2006) (upholding a variance of approximately double
the advisory guidelines range based on the district court’s conclusion that “the
appellant is a determined recidivist who poses an extra danger through his
frequent use of false names.”).
      Candrick has failed to demonstrate any plain error in the district court’s
judgment. Accordingly, that judgment is AFFIRMED.

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