     Case: 10-30666 Document: 00511408613 Page: 1 Date Filed: 03/11/2011




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

                                                 FILED
                                                                           March 11, 2011
                                     No. 10-30666
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

FONTAINE C. GREMILLION,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 1:09-CR-305-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Fontaine C. Gremillion pleaded guilty to a one count bill of information
charging her with theft of public money, property, or records in violation of 18
U.S.C. § 641, stemming from her fraudulently obtaining $118,738 in benefits
from the Department of Veterans Affairs (VA).                   Although her calculated
guidelines range, based on an actual loss of $110,848, was 10 to 16 months in
prison, the district court imposed a 24-month prison sentence. On appeal,
Gremillion asserts (1) that the district court erred in using $110,848 as the loss

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30666

amount because the parties stipulated that the loss amount would be $16,399
for sentencing purposes and the Government failed to establish that she
intended to defraud the VA, and (2) that the district court erred in imposing an
above-guideline sentence.
      A challenge to the court’s method of determining the loss amount is a
challenge to the court’s application of the Guidelines, which we review de novo.
United States v. Goss, 549 F.3d 1013, 1016 (5th Cir. 2008). The district court’s
calculation of the amount of loss is a factual finding that is reviewed for clear
error. Id. Gremillion’s argument that the district court erred by disregarding
the stipulated loss amount is without merit. Sentencing stipulations between
the Government and the defendant are not binding on the district court,
particularly when, as here, the defendant has not entered a guilty plea pursuant
to a binding plea agreement. United States v. Rhodes, 253 F.3d 800, 804 (5th
Cir. 2001); see also § 6B1.4(d) (noting that the sentencing court is not bound by
written stipulations of facts.). In addition, because the loss amount was based
on the actual amount of benefits Gremillion fraudulently received from the VA,
and not on any intended loss, the Government was not required to demonstrate
Gremillion’s actual intent in receiving the fraudulent funds. See United States
v. John, 597 F.3d 263, 279 (5th Cir. 2010) (noting that when determining
intended loss, the district court must determine the defendant’s actual intent);
United States v. Sanders, 343 F.3d 511, 527 (5th Cir. 2003) (noting that in the
absence of facts indicating intent, the defendant’s offense level must be
calculated using actual loss).
      Gremillion did not object to either the procedural or substantive
reasonableness of her sentence in district court; accordingly, we review her
challenge to the imposition of an above-guideline sentence for plain error only.
See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010) (failure to object at
sentencing to the substantive reasonableness of sentence triggered plain error
review); United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009) (failure

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                                  No. 10-30666

to object to the procedural reasonableness of sentence triggered plain error
review). To show plain error, Gremillion must show a forfeited error that is clear
or obvious and that affects her substantial rights. See Puckett v. United States,
129 S. Ct. 1423, 1429 (2009). If Gremillion makes such a showing, this court has
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      The district court expressly stated that it was imposing a sentence above
the guideline range after considering all of the 18 U.S.C. § 3553(a) factors,
particularly the nature and circumstances of Gremillion’s offense, her history
and characteristics, the need to reflect the offense’s seriousness, the need to
provide just punishment, and the need to promote respect for the law to
adequately deter others who might be similarly inclined to commit such fraud.
The district court was in the best position to make appropriate credibility
determinations and judge the circumstances of the offense. See United States
v. Gall, 552 U.S. 38, 51 2007). In addition, the district court considered the
appropriate sentencing factors and thoroughly articulated its reasons for
deciding upon the sentence. See United States v. Herrera-Garduno, 519 F.3d
526, 530 (5th Cir. 2008); United States v. Williams, 517 F.3d 801, 812 (5th Cir.
2008); United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). Accordingly,
Gremillion has not demonstrated that the district court committed error, plain
or otherwise, by imposing a sentence above the guideline range. See Puckett,
129 S. Ct. at 1429.
AFFIRMED.




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