                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                December 10, 2013
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                         No. 13-3069
 v.                                            (D.C. No. 2:11-CR-20088-CM-1)
                                                           (D. Kan.)
 TYA DEJUAN TILLER,

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      In this direct appeal, Defendant-Appellant Tya Dejuan Tiller challenges the

sentence imposed by the district court following her conviction on one count of

Social Security fraud and one count of theft of public money. Specifically, Ms.

Tiller disputes the substantive reasonableness of her sentence. The district court

sentenced her to a term of imprisonment of twelve months and one day and a term


      *
             After examining the briefs and appellate record, this panel has
decided unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.

      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
of supervised release of three years, and required her to pay restitution. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

                                         I

      In September 2003, Ms. Tiller applied for Social Security Disability

Insurance (“SSDI”) benefits. She cited depression and several other mental-

health impairments as reasons why she could not engage in substantial gainful

employment. By signing her SSDI application, Ms. Tiller acknowledged her

obligation to report any subsequent employment to the Social Security

Administration (“SSA”). Ms. Tiller and her two dependent children began

receiving SSDI benefits in 2004.

      In January 2005, Ms. Tiller accepted a position with the United States

Department of Veterans Affairs. She maintained this job until May 2007—but at

no point during that time period did she report her employment status to the SSA

as required. Then, from May 6, 2007 to February 28, 2010, Ms. Tiller worked for

the Kansas Department of Social and Rehabilitation Services as a case manager.

Once again, she failed to apprise the SSA of this development.

      Acting on information that Ms. Tiller had collected SSDI benefits while

working full-time for the State of Kansas, the SSA’s Office of Inspector General

commenced an investigation in June 2010. The agents determined that Ms. Tiller

and her children received $87,799 in overpaid benefits during Ms. Tiller’s time of

unreported employment. The agents also discovered that Ms. Tiller had abused

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her case-manager position to defraud the Supplemental Nutrition Assistance

Program (“SNAP”). 1 Specifically, she falsified records to create SNAP accounts

in the names of several individuals and purchased items for herself using the

benefits earmarked for those accounts. All told, Ms. Tiller unlawfully received

$11,234 in SNAP benefits.

      On October 6, 2011, Ms. Tiller was charged in an indictment with one

count of Social Security fraud, in violation of 42 U.S.C. § 408(a)(4) (Count I),

and one count of theft of public money, in violation of 18 U.S.C. § 641 (Count

II). Ms. Tiller filed a petition to plead guilty 2 to both counts on April 26, 2012,

wherein she admitted (1) concealing her employment and income in order to

receive SSDI payments, and (2) unlawfully obtaining SNAP benefits designated

for other individuals. Although she reported in her petition an exhaustive

psychiatric medication regimen (and two related hospital admissions), Ms. Tiller

also indicated that she understood the potential consequences of her plea—viz.,

imprisonment for “not more than 5 years on Count 1; not more than 10 years on

Count 2”; supervised release for “not more than 3 years”; and a maximum fine of

$250,000. R., Vol. I, at 14, 17, 20 (Pet., filed Apr. 26, 2012). The district court


      1
             The United States Department of Agriculture administers SNAP and
contracts with state agencies (such as Ms. Tiller’s former employer) to distribute
benefits. Program participants receive cards that they can use to purchase
groceries from designated retailers.
      2
             Ms. Tiller did not sign a written plea agreement.

                                         -3-
accepted Ms. Tiller’s petition to enter a plea of guilty and adjudged her guilty of

the two offenses.

      Prior to sentencing, the United States Probation Office prepared a

Presentence Investigation Report; following numerous calculations, it ultimately

assigned Ms. Tiller a total offense level of thirteen and a criminal history

category of I, resulting in an advisory Guidelines range of twelve to eighteen

months’ imprisonment. See Presentence Investigation Report, ¶ 61, at 13 (filed

Dec. 5, 2012) [hereinafter, “PSR”]. 3 Ms. Tiller filed no contemporaneous

objections to the PSR. However, two months before sentencing, she requested

probation in light of her allegedly poor health, her parenting duties, and her belief

that “she did nothing to conceal” her employment. R., Vol. I, at 21–25 (Mem.,

filed Jan. 25, 2013).

      At Ms. Tiller’s March 1, 2013, sentencing hearing, the government elicited

testimony from an agent who had investigated the SNAP fraud. After argument

from Ms. Tiller’s counsel, and a personal statement from Ms. Tiller herself, the

district court rejected her request for probation, adopted the PSR’s findings, and

imposed a within-Guidelines sentence of twelve months and one day of



      3
             The Probation Office used the 2012 edition of the United States
Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”) in preparing the PSR.
See PSR, ¶ 21, at 7. Neither party has objected to the use of the 2012 edition;
accordingly, this version of the Guidelines provides the framework for our
analysis here.

                                         -4-
imprisonment and three years of supervised release (on both counts, to run

concurrently). The court also ordered Ms. Tiller to pay restitution in the amount

of $76,875.20. Ms. Tiller’s timely appeal followed.

                                          II

      We review a sentence for substantive reasonableness under the deferential

abuse-of-discretion standard. United States v. Martinez, 610 F.3d 1216, 1227

(10th Cir. 2010). In our assessment, we determine “whether the length of the

sentence is reasonable given all the circumstances of the case in light of the

factors set forth in 18 U.S.C. § 3553(a).” United States v. Friedman, 554 F.3d

1301, 1307 (10th Cir. 2009) (internal quotation marks omitted). We recognize

that there is “a range of possible outcomes” in sentencing proceedings that “the

facts and law at issue can fairly support.” United States v. McComb, 519 F.3d

1049, 1053 (10th Cir. 2007). Thus, the fact that we might reasonably have

imposed a different sentence does not warrant reversal of the district court. See

Gall v. United States, 552 U.S. 38, 51 (2007).

      A sentence “within the correctly calculated Guidelines range . . . may be

presumed reasonable on appeal.” United States v. Haley, 529 F.3d 1308, 1311

(10th Cir. 2008). Ms. Tiller may rebut that presumption by demonstrating that the

§ 3553(a) factors justify a lower sentence. See United States v. Kristl, 437 F.3d

1050, 1054 (10th Cir. 2006) (per curiam). However, this court will find an abuse

of discretion only if the district court “renders a judgment that is arbitrary,

                                          -5-
capricious, whimsical, or manifestly unreasonable.” United States v.

Muñoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (internal quotation marks

omitted).

                                          III

      The single issue presented for our review is whether the sentence imposed

by the district court was substantively unreasonable. See Aplt. Opening Br. at 7

(distilling Ms. Tiller’s argument “[a]s simply . . . that the sentence is too long”).

According to Ms. Tiller, the district court abused its discretion by ignoring “the

parsimony principle” expressed in 18 U.S.C. § 3553(a). Id. at 9 (internal

quotation marks omitted); see United States v. Ray, 704 F.3d 1307, 1315 (10th

Cir.) (noting that under § 3553(a), a district court must “impose a sentence

sufficient, but not greater than necessary, to comply with the purposes of

punishment” (internal quotation marks omitted)), cert. denied, --- U.S. ----, 133 S.

Ct. 2812 (2013). Ms. Tiller advances four reasons that, in her view, justify a

sentence of probation: (1) her offense was not one of “active concealment”; (2)

her mental-health issues mitigate her culpability; (3) her children would be

unreasonably burdened by her sentence; and (4) she requires no further deterrence

or rehabilitation. We address—and reject—each contention in turn.

                                          A

      While Ms. Tiller acknowledges that she defrauded the SSA, she considers

her offense to be relatively benign. She argues that “[h]er behavior could almost

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be described as a failure to notify the federal government of beginning work

activity coupled with a failure to notify the government of an error on its part.”

Aplt. Opening Br. at 9. Ms. Tiller notes that she used her correct name, Social

Security number, and birth date during the period of her unreported employment,

and that she paid taxes on her earnings. In other words, as Ms. Tiller reasons, she

was not hiding her malfeasance. She also suggests that “it is likely” that the SSA

had continued to monitor her and that “[t]he only thing she could have done to be

more transparent to the [SSA] (short of sending the notification letter that she

failed to send) would have been to work directly for SSA itself.” Id. at 10–11.

We find the foregoing averments to be wholly unpersuasive.

      To the extent that Ms. Tiller is suggesting that her conduct—viewed

through the lens of her statute of conviction—is less culpable, she is mistaken.

The statute takes clear and direct aim at such fraudulent lack of disclosure.

Specifically, the statutory text provides:

             Whoever . . . having knowledge of the occurrence of any event
             affecting (1) [her] initial or continued right to any payment under
             this subchapter, or (2) the initial or continued right to any
             payment of any other individual in whose behalf [s]he has
             applied for or is receiving such payment, conceals or fails to
             disclose such event with an intent fraudulently to secure payment
             either in a greater amount than is due or when no payment is
             authorized . . . shall be guilty of a felony.

42 U.S.C. § 408(a)(4) (emphasis added). In other words, on its face, the statute

draws no distinction for liability purposes between an individual who “actively


                                             -7-
conceals” her fraudulent activity and one who does not. Ms. Tiller’s admissions

make clear that she: (1) knew obtaining employment would affect her right to

receive SSDI payments; (2) failed to report her employment to the SSA when she

did become employed; and (3) intended to continue collecting payments when she

was no longer authorized to do so. Accordingly, there is no question that Ms.

Tiller violated the statute in a straightforward fashion.

      And we conclude that, as part of its overall evaluation of the 18 U.S.C.

§ 3553(a) factors, the district court conducted a reasonable assessment of “the

nature and circumstances of [Ms. Tiller’s] offense,” id. § 3553(a)(1), and, in

doing so, expressly considered her lack-of-active-concealment justification. The

court’s specific findings at sentencing evince and underscore this conclusion:

             I considered the nature and circumstances of your offense, again,
             including your failure to report your work for . . . a significant
             period of time, as well as your active role in committing food
             stamp fraud. I know this was part of your argument, that you did
             not actively conceal the fact that you were working. I would
             mention, the court did not find this to be sufficiently mitigating
             in regards to your argument, again, for probation. The court also
             would note . . . that your actions have unfairly tarnished the
             image and reputation of all those other public servants who do
             their job in a fair and honest manner.

R., Vol. II, at 102 (Tr. of Sentencing Hr’g, dated Mar. 1, 2013). At bottom, Ms.

Tiller’s argument amounts to a thinly veiled invitation to us to independently

assess the weight the district court gave this § 3553(a) factor—an invitation we

must reject. See United States v. Alvarez-Bernabe, 626 F.3d 1161, 1165 (10th


                                          -8-
Cir. 2010) (“We may not examine the weight a district court assigns to various

[18 U.S.C.] § 3553(a) factors . . . as a legal conclusion to be reviewed de novo.”

(first alteration in original) (internal quotation marks omitted)). Accordingly, we

will not disturb on this basis the within-Guidelines sentence that the district court

imposed on Ms. Tiller.

                                          B

      Next, Ms. Tiller contends that her sundry mental-health conditions justify

probation. In particular, she argues that a downward variance is appropriate

because she was a victim of sexual assault and stabbing—and, tragically, because

her father was murdered when she was a child. Ms. Tiller has marshaled no case

law in support of her mental-health arguments, however. Ultimately, we conclude

that Ms. Tiller’s arguments concerning these admittedly unfortunate

circumstances do not rebut the presumption of reasonableness that we afford the

district court’s within-Guidelines sentence.

      The district court expressly included Ms. Tiller’s health concerns in its

§ 3553(a) calculus, noting, “[Y]ou do have a history of sexual and physical

abuse . . . . You suffer from various mental and physical health conditions.” R.,

Vol. II, at 101. However, the court observed, Ms. Tiller was “not the only one

that has this” unfortunate history. Id. Quite simply, after thoughtfully

considering her arguments in light of its sentencing experience, the court

disagreed with Ms. Tiller’s conclusions regarding the implications of these

                                         -9-
circumstances for her sentence.

      Mindful that “[t]he sentencing judge has access to, and greater familiarity

with, the individual case and the individual defendant before him than . . . the

appeals court,” Rita v. United States, 551 U.S. 338, 357–58 (2007), we defer to

the district court’s reasoned judgment as to the import of Ms. Tiller’s mental-

health issues for an appropriate sentence. See also Koon v. United States, 518

U.S. 81, 98 (1996) (“District courts have an institutional advantage over appellate

courts in making [§ 3553(a)] determinations, especially as they see so many more

Guidelines cases than appellate courts do.”). We conclude that Ms. Tiller has

failed to rebut on this ground the presumption that her within-Guidelines sentence

is substantively reasonable.

                                          C

      Ms. Tiller also argues that the obligations she has to her two minor children

militate in favor of a downward sentencing variance. She receives child-support

payments from the children’s father, but she is otherwise estranged from her

family and is therefore the only person caring for the children on a daily basis.

Thus, Ms. Tiller states, “A prison sentence that lapses into the next school year

will place an undue burden on her two children.” Aplt. Opening Br. at 13.

      As with the other relevant § 3553(a) factors, the district court discussed

Ms. Tiller’s parenting duties at sentencing and concluded that they were not

compelling. The court stated that while it “underst[ood] the burden

                                        -10-
imprisonment . . . would have on her children,” it was “not convinced that [her]

situation is substantially different from other defendants who have children who

will be adversely affected by a parent’s imprisonment.” R., Vol. II, at 101. In

addition, the district court expressed its disapproval regarding Ms. Tiller’s use of

her children as part of her SSDI scheme. We find nothing unreasonable about any

of these findings, and we note that no other record evidence suggests that Ms.

Tiller’s sentence was substantively unreasonable on this basis.

      Ms. Tiller’s cited legal authorities, moreover, do not alter this conclusion.

Ms. Tiller’s chosen case-law references are factually distinguishable, and only

two constitute binding precedent. In that regard, in United States v. Gauvin, 173

F.3d 798 (10th Cir. 1999) (dealing with a departure, not a variance), we upheld a

sentencing court’s decision to weight parenting duties heavily. We paid

particular attention to the court’s statement that it had “never seen [such] a

combination” of mitigating factors. 173 F.3d at 808 (internal quotation marks

omitted). There is no suggestion that Ms. Tiller’s circumstances present such an

“extraordinary” case. Id. Indeed, in marked contrast to Ms. Tiller’s situation, the

defendant in Gauvin had four young children whom, we noted, during his

incarceration were “financially barely provided for, and parentally unprovided

for.” Id. Furthermore, just because we upheld the district court’s decision to

weigh heavily the defendant’s family circumstances in Gauvin under a deferential

abuse-of-discretion standard, does not dictate that we should find error in a

                                         -11-
district court’s decision not to do so, when applying the same deferential

standard. Cf. United States v. McGehee, 672 F.3d 860, 877 (10th Cir. 2012) (“As

a threshold matter, in Gauvin, we merely accorded the district court the requisite

deference in upholding its decision to grant the two-level [acceptance-of-

responsibility] reduction. We did not indicate that other sentencing courts would

be obliged to reach the same conclusion on similar facts. In other words, giving

other sentencing courts the same degree of deference, we might well uphold their

decisions on similar facts to deny the acceptance-of-responsibility adjustment.”).

      Ms. Tiller’s reliance on United States v. Peña, 930 F.2d 1486 (10th Cir.

1991)—a downward-departure case—is also misplaced. The defendant in Peña

was the sole supporter for her two-month-old child, her teenage daughter, and her

daughter’s newborn baby. 930 F.2d at 1494. As a result, the district court could

reasonably have been concerned about the impact of a prison sentence on her

family. Id. Ms. Tiller’s circumstances are clearly nowhere near as dire as those

of the defendant in Peña; accordingly, her reliance on this case is unavailing. We

conclude once again that Ms. Tiller has failed to rebut the presumption of

reasonableness that we afford her within-Guidelines sentence.

                                          D

      Finally, Ms. Tiller contends that her sentence is “too long” because she

requires no additional deterrence or rehabilitation. As she sees it, the fact that the

district court could have imposed other sentences renders her own sentence

                                        -12-
substantively unreasonable. Of course, we leave such judgments to the district

court—not the defendant. Ms. Tiller’s argument plainly amounts to one last-ditch

request for this court to reweigh the § 3553(a) factors. We need not—and do

not—do so.

      It is patent that the district court reasonably considered the particular

circumstances of the crime—as well as Ms. Tiller’s unique personal

circumstances—through the lens of the § 3553(a) factors, in arriving at its

sentence. We have highlighted the court’s consideration of Ms. Tiller’s personal

circumstances, supra. As for the crime, notably, the court considered: (1) the

amount of government money Ms. Tiller unlawfully obtained; (2) the fact that

Ms. Tiller defrauded two government programs; (3) the use of Ms. Tiller’s

children to perpetrate fraud; (4) the length of time Ms. Tiller defrauded the

government; (5) the fact that Ms. Tiller abused her government position; and (6)

the effect that Ms. Tiller’s crime had on the image of government workers.

      Certainly, as Ms. Tiller suggests, the district court had several sentencing

options at its disposal. But this is neither a novel insight nor an appropriate

inquiry for a substantive-reasonableness challenge. “The approach . . . , which

calls for the appellate courts to substitute their views on the proper balance of the

factors set out in § 3553(a) for those of the sentencing courts on the front lines, is

patently at odds” with Supreme Court precedent. United States v. Sells, 541 F.3d

1227, 1239 (10th Cir. 2008). Ms. Tiller obviously disagrees with the sentence

                                         -13-
imposed, but it is within the advisory Guidelines range and reflects a thorough

weighing of the § 3553(a) factors. Accordingly, we are satisfied that the district

court imposed a substantively reasonable sentence.

                                         IV

      For all of the foregoing reasons, we conclude that the sentence imposed by

the district court was substantively reasonable. Accordingly, we affirm Ms.

Tiller’s sentence.


                                               Entered for the Court



                                               JEROME A. HOLMES
                                               Circuit Judge




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