                     NOT RECOMMENDED FOR PUBLICATION
                            File Name: 06a0115n.06
                            Filed: February 14, 2006

                                       No. 05-5350

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT




UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

              v.                                             On Appeal from the United
                                                             States District Court for the
JOANNA L. EDIGER,                                            Middle District of Tennessee

       Defendant-Appellant.


                                                        /

Before:       GUY, SUTTON, and MCKEAGUE, Circuit Judges.

       PER CURIAM.           Defendant Joanna L. Ediger worked for the Tennessee

Department of Labor (TDOL) as the Director of the TDOL’s Division of Employment and

Training. While working for the TDOL, Ediger helped Workforce Strategists LLC (WFS)

win a no-bid contract with the TDOL to provide mental health related services to chronically

unemployed workers. After she resigned from the TDOL, Ediger worked for and obtained

an ownership interest in WFS.

       The United States charged Ediger with one count each of mail and wire fraud for her

participation in an alleged scheme to award WFS a contract for her own personal gain.
No. 05-5350                                                                                  2

Following a six-day trial, a jury convicted her of both counts and the district court sentenced

her to a 36-month term of imprisonment and two years of supervised release. Ediger appeals

her convictions and her sentence. After careful review of the record, we conclude that there

was sufficient evidence to support her convictions and that the district court did not err in

imposing her sentence. Therefore, we affirm.

                                              I.

       Ediger was the Director of the Division of Employment and Training from July 1998

to August 1999. That division was responsible for administering millions in federal grant

money for the education and training of unemployed workers in Tennessee. Ediger oversaw

a staff of about 35 employees, and she reported to one of two Deputy Commissioners, each

of whom reported to the Commissioner of the TDOL, Mike Magill.

       In late summer or early fall 1998, Ediger and TDOL Deputy Commissioner Chip

Smith met with Commissioner Magill to discuss entering a sole source contract with a

company run by John Stamps, a lobbyist and personal friend of the governor, to provide

mental heath-related services for chronically dislocated workers. A “sole source” contract

is referred to in the Department of Finance and Administration (DF&A)’s written rules for

the approval of contracts. Under those rules, there are only three permissible methods of

obtaining a services contract: (1) the “Request for Proposal” process, whereby bids were

solicited from vendors through a written solicitation and then competitively evaluated; (2)

“Verbal Competitive Negotiation,” whereby the competitive process could be handled

verbally if the total value of services did not exceed $500; and (3) “Sole Source Negotiation,”

whereby the contract could be negotiated verbally with a single vender “in lieu of
No. 05-5350                                                                                3

competitive negotiation only where competitive negotiation would not be feasible or

practicable, as in the following cases: (i) The service required is available from only one

person or firm; (ii) The contract is with another governmental unit or state agency.”

       To request a sole source negotiation, departments were required to provide DF&A a

memorandum setting forth a “description of the services to be procured” and a “statement

of the means of negotiation the state agency intends to employ and the justification for that

choice . . . .” DF&A could then approve the request for sole source authorization based upon

necessity and compliance with the procedures. Id.

       Magill authorized Ediger to investigate whether there was justification for a sole

source contract with WFS. Ediger prepared a sole source justification memo on about

January 19, 1999 for Magill’s signature requesting that DF&A authorize TDOL to enter into

a contract with WFS. The memo stated that WFS was “the only company in Tennessee that

has experience developing a program similar in scope.” Magill signed the memo and had it

forwarded to DF&A for review.

       The Director of Contracts Review for the DF&A, Robert Barlow, sent a memo to

Magill on February 19, 1999, indicating that his department needed more information on

whether WFS was the only company, not just in Tennessee but anywhere, that could provide

the service. Ediger prepared a second sole source justification memo for Magill’s signature

on June 2, 1999. This second memo stated that other potential vendor programs assisted in

job searches but did not include the mental health component that WFS could provide. The

memo again claimed that WFS was “the only company in Tennessee that has experience

developing and implementing a program similar in scope, with performance-based
No. 05-5350                                                                                4

guarantees, performance based payments and with the capacity to handle the hard to serve

type of customer.” Id. Magill signed the memo and forwarded it to the DF&A. Robert

Barlow contacted TDOL General Counsel Martha Staley to inform her that the second memo

did not address his concern raised in his February 7, 1999 response to the first memo. Staley

in turn contacted Deputy Commissioner Chip Smith to inform him of the need for further

information.

       Ediger prepared a third sole source memo on July 15, 1999, in which she stated that

she and Chip Smith met with a vendor from Maryland1, but that they could not meet the

necessary time line and their price was three times that of WFS’s. She forwarded the memo

to Staley, who forwarded it to Barlow at the DF&A.

       Contrary to Ediger’s assertions in her three memos regarding WFS’s experience, WFS

had no experience because it was not yet an operational business when Ediger wrote the

memos. Around April 1999, John Stamps began discussing the potential creation of a

company that would provide psychiatric and group counseling for chronically unemployed

persons. In May, Stamps contacted his corporate lawyer about options for creating WFS as

a business entity and on May 26, 1999, Articles of Organization for WFS were mailed to the

Tennessee Secretary of State’s Office for registration. Marcus Burrows, a registered

psychiatric nurse who also held a master’s degree in business administration, was identified

as the Chief Manager and President of WFS and was given a 10% ownership interest.

Burrows worked from May until the fall preparing WFS to open for business. It was not



       1
        The vendor was Sylvan Learning Systems, Ediger’s former employer.
No. 05-5350                                                                               5

until October 1999, after Burrows had been notified that the TDOL contract was approved,

that he leased office space, office equipment, and hired a counselor and receptionist. WFS

did not open for business until November of 1999.

       The same day that Ediger completed the third sole source memo, she informed her

superiors that she was resigning to accept a teaching position at Vanderbilt University. She

asked to transition out of her position by July 31 because of her August 15 “report date” at

Vanderbilt, but she stated that she would be willing to work with TDOL “in whatever

capacity is needed in between classes.” She worked at TDOL until August 13, 1999.

       On August 3, 1999, DF&A approved the TDOL’s request to negotiate a sole source

contract with WFS “based on the information that was provided.” Soon after her departure

from the TDOL, while WFS and TDOL were negotiating their contract, Ediger began

“consulting” work for WFS. In September, she had her sister prepare a logo for WFS. Also

in September, Stamps introduced Ediger to Burrows, and thereafter Ediger emailed Burrows

regarding WFS’s potential contract with TDOL. On October 14, 1999, Ediger sent Burrows

the email that was the basis of the wire fraud charged in Count One of the indictment. The

email, a response to a message from Burrows about “red-tape” at the TDOL, stated:

       I told John [Stamps] I was going to call you this week and give you a pep talk.
       I think you all coming is an excellent idea. It maybe [sic] time for John to get
       Chip back involved to free things up. When I did the contracting with Texas
       they finally brought the F&A people to us for a meeting. The Governor’s staff
       got really frustrated by the Workforce Commission people and wanted to get
       things moving. Maybe Chip could do that in this situation.

       Please hang in there. You are so valuable. I talked with Joan several times
       and she is talking with Natasha also. We just have to keep the faith.
       Persistence is what a contract with the government requires.
No. 05-5350                                                                             6

      Let me know if I can do anything from here.

      As her email makes clear, Ediger continued to have contact with the TDOL after she

resigned her position there. On October 25, 1999, Ediger called the TDOL Director of

Technical Assistance Joan Craig and said that Stamps wanted Ediger to attend a meeting

between WFS and the TDOL. Ediger did not indicate that she was acting as a consultant to

WFS or had any financial interest in WFS. Craig sent an email about the conversation to

other TDOL officials, Maria Draper, Elizabeth Houston, and Chip Smith, which stated:

      I just talked to Joanna Ediger. She has been asked by John Stamps to attend
      the meeting in Chattanooga. She was hesitate [sic] to say yes to attending this
      meeting, but because she and Mr. Stamps are good friends and she has been
      involved from the beginning, she is willing and wants to be there as a closure
      to the project that she started.

      Following their receipt of the email, Draper and Houston discussed whether Ediger

should attend the meeting since she was no longer a TDOL employee. Draper told Ediger

that she could attend the meeting, but she could not represent the TDOL at the meeting.

Ediger responded that she understood she did not represent the TDOL any longer but that

Stamps would feel more comfortable with her there because she had been involved with the

project from the beginning. Id.

      TDOL entered a contract with WFS in November 1999. The contract provided that

WFS would provide services for an anticipated three years at approximately $644,000 per

year. On December 2, 1999, at Stamp’s instruction, Burrows cut a $1,000 check to Ediger

on WFS’s bank account. On January 27, 2000, at Stamps’s instruction, Burrows cut Ediger

a WFS check for $1,500. On February 9, 2000, at Stamps’s instruction, Burrows issued a

WFS check for $10,000 to Ediger. Stamps told Burrows to backdate the WFS books to make
No. 05-5350                                                                                  7

it appear that the $10,000 payment was actually four $2,500 payments over the previous four

months for “consulting.” In March 2000, Ediger bought 11,250 units in the company, an

11% ownership right in WFS. Over the course of 2000, an additional 11,250 units were

transferred to Ediger. She continued to provide consultation services, visiting WFS’s office

about once per month, and she served briefly as the executive director of WFS.

       The United States charged Ediger with mail fraud arising out of mailing an invoice

from WFS to the TDOL on October 2, 2000; wire fraud arising out of the October 14, 1999

email; accepting a bribe; and lying to the Federal Bureau of Investigations (FBI). After a six-

day trial, a jury found her not guilty of the bribery and lying to the FBI counts but guilty of

one count each of wire and mail fraud. Ediger filed a mid-trial Motion for Judgment of

Acquital and a post-trial Motion for Judgment of Acquittal. The district court denied the

motions and subsequently sentenced her on February 14, 2005, to 36 months of

imprisonment and 2 years of supervised release. Ediger filed a timely Notice of Appeal on

February 22, 2005, challenging the sufficiency of the evidence and the sentence.

                                              II.

A.     Sufficiency of the Evidence

       “[W]hen the sufficiency of the evidence is challenged on appeal, the standard of

review is ‘whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” United States v. Swidan, 888 F.2d 1076, 1080 (6th Cir.1989) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)).
No. 05-5350                                                                                 8

       The elements of wire fraud (18 U.S.C. § 1343) and mail fraud (18 U.S.C. § 1341) are

essentially the same. United States v. Daniel, 329 F.3d 480, 485-86 (6th Cir. 2003). Both

require proof of (1) a scheme or artifice to defraud, (2) use of interstate wire or mail

communications in furtherance of the scheme, and (3) intent to deprive a victim of money

or property. Id. “A scheme to defraud includes any plan or course of action by which

someone intends to deprive another by deception of money—deprive another by deception

of money or property by means of false or fraudulent pretenses, representations, or

promises.” United States v. Gold Unlimited, Inc., 177 F.3d 472, 479 (6th Cir. 1999).

       “[T]he scheme to defraud element required under [18 U.S.C.] § 1341 is not defined

according to a technical standard. The standard is a ‘reflection of moral uprightness, of

fundamental honesty, fair play and right dealing in the general and business life of members

of society.’” Daniel, 329 F.3d at 486 (quoting United States v. Van Dyke, 605 F.2d 220, 225

(6th Cir. 1979)).

       The government alleged that Ediger’s scheme was to secure for WFS the TDOL

contract by false pretenses. The alleged false pretenses were the false statements in the sole

source memos and working with the TDOL after her resignation in an effort to secure the

WFS contract without disclosing to the TDOL her personal financial interest in WFS. The

government further alleged that the invoice and the email were made during and in

furtherance of that scheme. Ediger argues that there was insufficient evidence for the jury

to convict her of mail and wire fraud for two reasons: (1) there was no evidence from which

a jury could have concluded that Ediger possessed the requisite intent to defraud; and (2) the

object of the alleged scheme, to obtain authorization to negotiate a sole source contract
No. 05-5350                                                                                 9

between WFS and the TDOL, was complete before Ediger made the allegedly fraudulent

communications.

       1.     Ediger had the requisite mens rea

       Wire and mail fraud are specific intent crimes, requiring the government to prove not

only that Ediger knowingly made a material misrepresentation or knowingly omitted a

material fact, but also did so with the “purpose of inducing the victim of the fraud to part

with property or undertake some action that he would not otherwise do absent the

misrepresentation or omission.” Daniel, 329 F.3d at 487 (emphasis added). Ediger contends

that the state would have been inclined to grant WFS the contract regardless of her

misrepresentations and omissions because, once the WFS contract was put up for competitive

bid, there was no other bidder for the contract, and the evidence showed that WFS fully

serviced the contract, received good reviews for its performance, and won annual contract

renewals. Her argument fails for two reasons. First, the jury could have reasonably

concluded that the state would not have approved a sole source contract with a nonexistent

company that was later created only for the purpose of servicing the TDOL contract.

Relatedly, the jury could also have reasonably determined that the reason WFS was the only

bidder was that they were the only company given the opportunity (through Ediger’s fraud)

to form for the purpose of fulfilling a certain TDOL contract that was almost guaranteed.

       Ediger also argues that the only evidence that could support the inference that she

intended to defraud, her work for and ownership in WFS immediately after her resignation

from the TDOL, was insufficient to support the jury’s determination of her guilt. We

disagree. Her personal financial stake in WFS is sufficient to support the inference that she
No. 05-5350                                                                              10

intended to defraud the state. Furthermore, the fact that Ediger made misrepresentations, a

conclusion she does not challenge on appeal, could have supported the inference that she

intended the misrepresentations to defraud the state.

       2.     The communications were in furtherance of the scheme

       The communications underlying the mail and wire fraud charges must have been

related to the scheme such that “the scheme’s completion or the prevention of its detection

must have depended in some way on the charged mailing.” United States v. Castile, 795

F.2d 1273, 1278 (6th Cir. 1986). Ediger theorizes that the goal of the alleged scheme, to

obtain sole source funding, was completed on August 2, 1999, when DF&A approved the

source funding for WFS. Since the email was sent October 3, 1999, and the invoice was sent

October 2, 2000, they could not have been communicated with the purpose of executing the

scheme. The flaw in Ediger’s argument is that she construes the scheme, and its date of

completion, too narrowly. The object of the scheme was for WFS to receive money from the

TDOL contract. The email furthered that goal by helping Burrows establish WFS by

assuring him that her contacts within the TDOL would help smooth the way for the award

of the contract, and by suggesting an alternate method (using Stamps’s influential contacts)

to push the contract forward. The mailed invoice, in turn, helped secure the money that was

the end goal of the scheme. See United States v. Serafino, 281 F.3d 327 (1st Cir. 2002);

United States v. Powers, 168 F.3d 741 (5th Cir. 1999).

B.     Sentencing

       The base offense level for Ediger’s convictions was six. The court added two levels

because the offenses involved a misrepresentation that Ediger was acting on behalf of a
No. 05-5350                                                                               11

government agency, and the court added another two levels because Ediger abused a position

of public trust. The government contended that her offense level should be increased by

another 16 levels because the loss resulting from Ediger’s fraud is properly valued at $1.9

million, the value of three years of WFS’s ill-gotten contract with the TDOL. After those

enhancements, Ediger’s guideline range would have been 63 - 78 months. The district court

decided that the loss should be valued at what Ediger gained—$130,000—instead of what

the State of Tennessee lost. The court also reasoned that since the statutory maximum on

each count was only 60 months, to reach the recommended sentence Ediger would have to

be sentenced to the statutory maximum on one count and additional months on the second

count, to be served consecutively. The court decided that a sentence including a statutory

maximum and a second consecutive sentence is usually reserved for repeat offenders, and

it was not warranted here because Ediger was a first-time offender. After reducing the loss

amount, the guideline range was reduced to 33 - 41 months. The court sentenced her to 36

months, the middle of the tailored guideline range. Ediger argues that we should vacate her

sentence for several reasons, some of which are inconsistent and all of which are

unpersuasive.

       1.       Retroactivity of Booker

       Ediger was sentenced on February 14, 2005, one month after the Supreme Court

issued its decision in United States v. Booker, 125 S. Ct. 738 (2005). She contends that

because she allegedly engaged in her criminal activity before Booker, the district court’s

application of Booker to her sentence violates her due process rights and the rule against ex

post facto laws. Since Ediger raised this issue during sentencing in the district court, we
No. 05-5350                                                                                  12

review de novo. United States v. Jones, 399 F.3d 640, 649 (6th Cir. 2005). In Booker, the

Supreme Court decided that the mandatory nature of the federal sentencing guidelines

violated the Sixth Amendment, and as a result they are no longer mandatory but only

advisory. The Supreme Court also explicitly held that its decision would apply to all cases

on direct review, cases where the defendants necessarily completed their criminal activities

before Booker was decided. If Booker applies to the sentences of defendants who have

already been sentenced (but whose cases are on direct appeal), it is undisputable that Booker

must also apply to the sentences of defendants like Ediger who committed crimes before

Booker but were sentenced after Booker. See United States v. Vaughn, 430 F.3d 518, 525

(2d Cir. 2005); United States v. Rines, 419 F.3d 1104, 1106-07 (10th Cir. 2005), cert. denied,

__ S. Ct. __, 2006 WL 37744 (2006); United States v. Dupas, 419 F.3d 916, 920-21 (9th Cir.

2005); United States v. Jamison, 416 F.3d 538, 539 (7th Cir. 2005); United States v.

Scroggins, 411 F.3d 572, 576 (5th Cir. 2005); United States v. Fox, 2006 WL 15381 at *1

(4th Cir. Jan. 4, 2006) (unpublished disposition).

       2.     The District Court Considered the Guidelines Advisory

       Ediger next objects to her sentence because she claims that the District Court

considered the sentencing guidelines mandatory instead of advisory, in violation of Booker.

Not only is this argument inconsistent with her first argument, it is without factual basis. The

transcript of Ediger’s sentencing clearly reflects that the district court knew the guidelines

were advisory. In fact, the court relied in part on the advisory nature of the guidelines when

sentencing her below the range required by the literal application of the guidelines.
No. 05-5350                                                                                    13

       Near the beginning of the hearing, the district court stated: “I think the Booker court

has made it clear that the Court is to apply the guidelines, consider them and then after doing

that can tailor the sentence, if necessary, under 3553(a) to achieve the appropriate sentence.”

In considering Ediger’s objection to the presentence investigation report’s loss calculation

of $1.9 million, the court decided:

       The guideline literally applies meaning that the intended loss is $1.9 million.
       But under Section 3553(a), it is the view of [the] Court that the best measure
       of the actual offense conduct of Ms. Ediger is the amount that she gained under
       the contract. And I am going to tailor the guideline range sentence under
       3553(a) as a result. I think that the $1.9 million intended loss amount
       overstates the actual offense conduct in this case, the nature of Ms. Ediger’s
       role and the exact circumstances of it. . . .

              That would mean that instead of a 16-level enhancement would be a 10-
       level enhancement and produce an offense level of 20 rather than 26.
       Guideline range of 33 to 41 months.

               ....

       [T]he Court is going to look to the guideline range of 33 to 41 months,
       recognizing that I am not bound by that; I am using that only in an advisory
       way.

In rejecting Ediger’s request for a sentence of probation instead of incarceration, the court

explained:

       I don’t think a sentence of probation is appropriate. I think incarceration is
       necessary based on your real offense conduct and also to deter the revolving
       door of public corruption that occurs in government. I think it is important that
       those in government hear the reverberating clang of the cell door behind them
       to deter others from engaging in this kind of conduct.

       In support of her argument, Ediger focuses on the following isolated statement by the

district court: “Based on the findings of the Court, probation is not an option.” Read in

context with the district court’s other statements, it is obvious that it was the district court’s
No. 05-5350                                                                                                14

own analysis of Ediger’s conduct, not the sentencing guidelines, that convinced the court not

to consider probation as an appropriate sentence.

        3.      Ediger’s sentence was not excessive or unreasonable under 18 U.S.C. §
                3553(a)

        Ediger’s final argument is that her sentence of 36 months was excessive and

unreasonable under the factors enumerated in 18 U.S.C. § 3553(a).2 Specifically, Ediger

        2
         18 U.S.C. § 3553(a) provides:

         (a) Factors to be considered in imposing a sentence.—The court shall impose a sentence sufficient,
but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The
court, in determining the particular sentence to be imposed, shall consider—

                (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—

                        (A) the applicable category of offense committed by the applicable
                category of defendant as set forth in the guidelines—

                                  (i) issued by the Sentencing Commission pursuant
                         to section 994(a)(1) of title 28, United States Code, subject
                         to any amendments made to such guidelines by act of
                         Congress (regardless of whether such amendments have
                         yet to be incorporated by the Sentencing Commission into
                         amendments issued under section 994(p) of title 28); and

                                 (ii) that, except as provided in section 3742(g), are
No. 05-5350                                                                                          15

argues that the district court did not adequately consider her lack of criminal history, her

status as a mother of two small children, her small role in a scheme she alleged was

orchestrated by her superiors at the TDOL, the letters to the court on her behalf testifying to

her good character, and her low risk of recidivism.

       The reasonableness of a sentence post-Booker should be determined by consulting the

factors listed in § 3553(a). In United States v. Webb, 403 F.3d 373, 383-85 (6th Cir. 2005),

cert. denied, __ S. Ct. __, 2006 WL 37998, we identified the following circumstances that

would support a finding of reasonableness: (1) the fact that the district court properly

calculated and considered the appropriate guideline range; (2) the fact that the district court

properly considered other pertinent Section 3553(a) factors; (3) the absence of indication that


                       in effect on the date the defendant is sentenced; or

                       (B) in the case of a violation of probation or supervised release, the
               applicable guidelines or policy statements issued by the Sentencing
               Commission pursuant to section 994(a)(3) of title 28, United States Code,
               taking into account any amendments made to such guidelines or policy
               statements by act of Congress (regardless of whether such amendments
               have yet to be incorporated by the Sentencing Commission into
               amendments issued under section 994(p) of title 28);

               (5) any pertinent policy statement—

                       (A) issued by the Sentencing Commission pursuant to section
               994(a)(2) of title 28, United States Code, subject to any amendments made
               to such policy statement by act of Congress (regardless of whether such
               amendments have yet to be incorporated by the Sentencing Commission
               into amendments issued under section 994(p) of title 28); and

                        (B) that, except as provided in section 3742(g), is in effect on the
               date the defendant is sentenced.

              (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.
No. 05-5350                                                                                  16

the sentence was set arbitrarily; (4) the absence of indication that the sentence was based on

impermissible factors; and (5) the absence of indication that unreasonable weight was given

to any pertinent factor.

         We would be hard-pressed to find a district court that sentenced a defendant more

reasonably than the one in this case. First, we must emphasize that Ediger’s sentence was

actually less than that recommended by the guidelines. As the Seventh Circuit has stated,

“It is hard to conceive of below-range sentences that would be unreasonably high. . . .[T]he

United States would have better claim to be the party aggrieved by the district judge’s

disposition, and it has not appealed.” United States v. George, 403 F.3d 470, 473 (7th Cir.

2005).

         Secondly and equally important, the district court explicitly and carefully considered

the factors enumerated in § 3553(a). In considering the first factor, the nature and

circumstances of the offense, the court decided that the circumstances required a significantly

lower sentencing range. Turning to her criminal history, the district court concluded that

because she had no criminal past, it should not impose the guideline-required sentence which

would have resulted in sentencing Ediger to the statutory maximum on one of the counts and

a consecutively served sentence on the second count. As the district court’s quotes in the

previous section make plain, the court also took into account the need for the sentence to

reflect the seriousness of the offense, to promote respect for the law, to provide just

punishment, and to afford adequate deterrence. In considering her need for medical care, the

court granted her request to delay her term of incarceration for several months, until after she

recovered from an upcoming surgery. As also indicated by the language quoted in the
No. 05-5350                                                                               17

preceding section, the court considered the various types of sentences available, including

probation, but decided in favor of incarceration. The court also considered the guideline

range, but decided it was too severe to fit Ediger’s conduct, and accordingly it tailored it

downward. Finally, the district court considered restitution but decided against it.

       With respect to the final three indicia of reasonableness endorsed in Webb, all exist

in this case. The sentence was set out thoughtfully, there is no indication that the sentence

was based on impermissible factors, and the court considered the § 3553(a) factors

proportionally and in relation to one another. Finally, the court also recognized Ediger’s

familial role and obligations as a spouse and parent of young children, but decided that the

other sentencing considerations outweighed those circumstances, which are regrettably

shared by many convicted defendants.

       AFFIRMED.
