Submitted: November 13, 2017
from United States District Court for the Western District of
Missouri - Kansas City
COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
MELLOY, Circuit Judge.
violating conditions of her probation by participating in an
illegal "lottery" scam, Defendant-Appellant Carol
Ann Ryser appeals the sentence she received for her probation
violations, arguing that the district court committed a
procedural error when imposing her sentence and that her
sentence is substantively unreasonable. Specifically, Ryser
contends that the district court committed procedural error
by selecting a sentence based, in part, on the court's
determination she "profited" from the scam and that
her twenty-four-month sentence was greater than necessary in
light of certain mitigating factors. We disagree and affirm
the judgment of the district court.
2013, Ryser pleaded guilty to two federal offenses:
health-care fraud and filing a false tax return. Her advisory
sentencing range under the United States Sentencing
Guidelines was thirty to thirty-seven months of imprisonment.
The district court declined to impose a term of imprisonment
and instead sentenced Ryser to three years of probation.
2016, before her probation ended, Ryser was accused of
violating conditions of her probation by engaging in an
illegal lottery scam. Through the scam, other individuals,
who were not identified, called numerous elderly victims and
duped the victims into believing they had won a lottery. To
receive the "lottery awards, " the callers stated,
the victims first had to pay taxes and fees on the awards.
Acting under this false belief, the victims sent Ryser (and
other individuals) cash, cashier's checks, and money
orders. Ryser then sent some of this money to numerous
individuals in the United States and Jamaica. The government
concedes that it did not identify the precise amounts of
money that Ryser received from the victims or that she
forwarded to others involved in the scam. Based on her
conduct, Ryser allegedly violated two conditions of her
probation: (1) committing another federal, state, or local
crime; and (2) associating with a person engaged in criminal
activity, without her probation officer's permission.
hearing on Ryser's alleged probation violations and after
considering the evidence, the district court found that Ryser
violated her probation conditions. Based on these probation
violations, Ryser's guideline range was four to ten
months of imprisonment. The court revoked Ryser's
probation and sentenced her to twenty-four months of
imprisonment. Ryser timely appealed.
first argues that the district court committed procedural
error by basing the selected sentence partly on a purportedly
unsupported factual finding: that she "profited"
from her role in the scam. The essence of Ryser's
argument, it appears, is that because the government did not
ascertain the precise total amounts that Ryser received or
forwarded, there is no proof that she obtained a profit.
Because it is a procedural error for a district court to
impose a sentence based on a clearly erroneous fact, we
review the district court's finding for clear error.
See Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Feemster, 572 F.3d 455, 461 (8th
Cir. 2009) (en banc).
conclude that there was no clear error in finding that Ryser
profited from the scam. Ryser stipulated to receiving tens of
thousands of dollars from at least six victims, including
over $26, 000 from one victim. Ryser also stipulated to
receiving money in cash, which was difficult to trace, and to
depositing money into her bank account. Although Ryser
testified that she forwarded nearly all of the money she
received and that she retained some money only to pay for her
expenses associated with the scam, the district court found
Ryser's testimony "to be less than credible."
Moreover, Ryser told her probation officer that her conduct
was "work at home, " and she testified that she
thought this work would help her out of her tough financial
situation. This record supports the district court's
finding that there were "reasonable inferences"
that Ryser benefitted and profited from the scam. The
district court therefore did not clearly err.
next contends that her twenty-four-month sentence is
substantively unreasonable. "[W]e consider the
substantive reasonableness of the length of the sentence
under an abuse-of-discretion standard." United
States v. Misquadace, 778 F.3d 717, 718 (8th Cir. 2015)
(per curiam) (alteration in original) (citation omitted).
"A district court abuses its discretion [in imposing a
sentence] when it '(1) fails to consider a relevant
factor that should have received significant weight; (2)
gives significant weight to an improper or irrelevant factor;
or (3) considers only the appropriate factors but in weighing
those factors commits a clear error of judgment.'"
Id. at 718-19 (citation omitted).
conclude that the district court did not abuse its discretion
in sentencing Ryser. The court considered the 18 U.S.C.
§ 3553(a) factors and the guideline range for the
probation violations. The court also considered the guideline
range of thirty to thirty-seven months' imprisonment for
the underlying convictions. The court considered this range,
it explained, because the court previously "extended
mercy" to Ryser by imposing probation rather than
imprisonment and because Ryser had responded to this mercy
"with more fraud." In doing so, the court acted
within its discretion. See id. at 719 (affirming a
sentence for the statutory maximum of twenty-four months of
imprisonment, although the guideline range for the probation
violation was eight to fourteen months); United States v.
Shepard, 657 F.3d 682, 685 (8th Cir. 2011) (per curiam)
(affirming a sentence for the statutory maximum of sixty
months of imprisonment, although the guideline range for the
probation violation was four to ten months). The district
court also "had presided over [Ryser]'s initial
sentencing and thus was 'fully apprised of [her] history
and characteristics.'" Shepard, 657 F.3d at
685 (quoting United States v. Miller, 557 F.3d 919,
922 (8th Cir. 2009)).
argues that the district court improperly weighed the §
3553(a) factors because the court based Ryser's sentence
in part on her probation violations, though the guideline
calculation already accounted for that factor, and because
the court considered the "mercy" it extended Ryser
at the first sentencing by imposing probation rather than
imprisonment. These arguments are without merit. A sentencing
court acts within its discretion in considering the nature
and circumstances of a defendant's probation violation
and the defendant's defiance of her probation conditions,
as these are proper § 3553(a) factors. See United
States v. Keatings, 787 F.3d 1197, 1204 (8th Cir. 2015)
(affirming a sentence as substantively reasonable where the
district court "was obviously disappointed in [the
defendant]'s inability to comply with the conditions of
his probation for even one month" and "based [the
defendant]'s sentence on his failure to comply with the
conditions of his probation as well as the section 3553
factors"); United States v. Ceballos-Santa
Cruz, 756 F.3d 635, 638 (8th Cir. 2014) (per curiam)
(affirming a sentence as substantively reasonable where the
district court "recognized the significant
reduction" the defendant received at his initial
sentencing "and decided [in sentencing the defendant for
a supervised-release violation that] a longer sentence would
help achieve general and specific deterrence").
Ryser argues that the district court did not give sufficient
weight to her history and characteristics, such as her lack
of criminal history; the nature of her underlying
convictions; her limited role in the scam; and her poor
health. Based on our review of the record, however, the
district court did not abuse its discretion. The district
court considered many of the factors Ryser flags. It found
that, before her involvement in the scam relevant here, Ryser
herself had been victimized by a similar fraudulent scam and
lost several hundred dollars. The court also noted that Ryser
was seventy-nine years of age and suffered from several
health conditions, including Crohn's disease. And the
district court explained that it was imposing a lower
sentence than the court otherwise would have because
of Ryser's poor health. The district court
nevertheless weighed these mitigating factors against the
aggravating factors and found the aggravating factors more
powerful. "This court . . . gives district courts
'wide latitude to weigh the § 3553(a) factors in
each case and assign some factors greater weight than others
in determining ...