     Case: 09-10068     Document: 00511147492          Page: 1    Date Filed: 06/21/2010




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

                                                  FILED
                                                                            June 21, 2010

                                       No. 09-10068                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

ERICKA CULBERSON

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 4:08-CR-136-A


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Ericka Culberson pled guilty to one count of unauthorized bank entries,
reports, and transactions, in violation of 18 U.S.C. § 1005. She had no prior
convictions, resulting in a base Sentencing Guidelines range of zero to six
months. However, her pre-sentence report (“PSR”) recalculated a hypothetical
sentencing range based on Culberson’s alleged involvement in a scheme to
obtain over twenty fraudulent bank loans from her former employer Bank of
America. The intended loss for the substantive offense was $20,000, but the

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10068

intended loss for the bank loan scheme totaled over $1,000,000, resulting in a
Guideline range of 37–46 months imprisonment. Based on this alleged conduct,
the district court upwardly departed from the base sentencing range and
sentenced Culberson to 40 months imprisonment, below the thirty-year
maximum that § 1005 permits.
      Culberson argues that the district court violated her Sixth Amendment
rights when it engaged in fact-finding at sentencing with regard to the alleged
bank loan scheme, using these facts as a basis for its decision to depart upwardly
in Culberson’s sentence. Culberson does not contend that it was improper for
the district court to apply the upward departure provisions of U.S.S.G. § 5K2.0
(2001) to her sentence, nor does she contend that the district court’s factual
findings with regard to the bank loan scheme were not supported by a
preponderance of the evidence. Rather, her sole challenge is that her sentence
would have been unreasonable without the district court’s findings in support of
the upward departure, and that consequently, those findings had to be made by
a jury beyond a reasonable doubt in order for them to support the sentence. We
review de novo constitutional questions of law. United States v. Perez-Macias,
335 F.3d 421, 425 (5th Cir. 2003).
      In explaining the changes to Sentencing Guidelines application instituted
by United States v. Booker, 543 U.S. 220 (2005), we noted:
      Booker contemplates that, with the mandatory use of the Guidelines
      excised, the Sixth Amendment will not impede a sentencing judge
      from finding all facts relevant to sentencing. The sentencing judge
      is entitled to find by a preponderance of the evidence all the facts
      relevant to the determination of a Guideline sentencing range and
      all facts relevant to the determination of a non-Guidelines sentence.
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005) (internal citation
omitted); see also United States v. Whitfield, 590 F.3d 325, 367 (5th Cir. 2009)
(quoting same). In other words, a non-Guidelines sentence within the statutory



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                                No. 09-10068

maximum is not unreasonable, let alone a violation of the Sixth Amendment,
when a district court judge finds facts by a preponderance of the evidence in
support thereof.
      The district court found the information in the PSR regarding Culberson’s
prior fraudulent conduct in the bank loan scheme to be true by a preponderance
of the evidence and sentenced Culberson within the Guidelines range suggested
by that conduct, as permitted by the Guidelines and our precedent. See U.S.S.G.
§ 5K2.0; Whitfield, 590 F.3d at 367; Mares, 402 F.3d at 519. Culberson was
sentenced to 40 months imprisonment, well below the 30-year statutory
maximum sentence. See 18 U.S.C. § 1005. The district court did not violate
Culberson’s Sixth Amendment rights in departing upward from her Guidelines
sentence, as the resultant sentence was reasonable, based on the facts the
district court properly found by a preponderance of the evidence.
      AFFIRMED.




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