                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 09a0251n.06
                                   Filed: April 1, 2009

                                            No. 08-5162

                           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
SHERYL SEWELL,                                      )    EASTERN DISTRICT OF TENNESSEE
                                                    )
       Defendant-Appellant.                         )
                                                    )
                                                    )



BEFORE:        MERRITT, GRIFFIN, and KETHLEDGE, Circuit Judges.


       MERRITT, Circuit Judge. In this direct criminal appeal submitted on the briefs, the

defendant, Ms. Sewell, a bank employee who pled guilty to one count of embezzling approximately

$330,000 from her bank employer, appeals her Guideline sentence of 27 months. The defendant’s

basic argument on appeal is that she made restitution promptly and that her sentence should be less

than someone who had not made restitution at the time of sentencing. She phrases her argument in

her brief as follows: “Without a variance in this case, there exists a disparity between Ms. Sewell and

other defendants who make no effort to repay, no effort to rehabilitate themselves, no effort to return

the victims to wholeness.” The defendants adds that “the district court decided not to give Ms.

Sewell credit for her aberrant behavior and remorse due to the advantages in life she possessed. The
No. 08-5162
United States v. Sewell

district court felt that a person should not get a lesser sentence because they had a position of trust

and better circumstances when, in fact, Ms. Sewell asked for a lesser sentence based upon her

repayment of stolen funds, remorse and self-rehabilitation.” (App. brief, p. 12.)

        Based upon our review of the facts of the case, the pre-sentence report and the sentencing

hearing, we can only conclude that the district court took into account all of the relevant facts

concerning both the offense characteristics and the characteristics and circumstances of the offender

— facts that were undisputed and admitted. We conclude that the district court was well within its

discretion. Counsel for the defendant did not argue at the sentencing hearing for a probationary

sentence but rather briefly argued “that we’d asked the court to consider a lesser term of

incarceration because the thing that we are arguing is sufficient, but not really necessary, and that

27 months we believe is greater than necessary to teach Ms. Sewell a lesson or to deter other

individuals . . . .”

        The District Court obviously thought, however, that the two-year sentence was necessary to

deter other bank embezzlement offenses and was commensurate with the seriousness of the offense.

Although other judges may have given a different sentence, this sentence does not fall outside the

range of reason.

        Finding no basis or persuasive argument for disturbing the sentence imposed by the district

court, accordingly, the judgment of the district court is affirmed.




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