# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 10, 2010

Decided December 22, 2010

Before

RICHARD D. CUDAHY, Circuit Judge

DANIEL A. MANION, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 10

‐ 1871

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

ELIZABETH CULBERTSON,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 09

‐ CR

‐ 461

Virginia M. Kendall,

Judge

.

O R D E R

Elizabeth Culbertson pleaded guilty to one count of bank fraud. See 18 U.S.C. § 1344.

She was sentenced to a total of 12 months’ and a day imprisonment, roughly three months

below the guidelines range. Culbertson argues on appeal that the district court did not

adequately consider her family circumstances, while using her religious background as an

aggravating factor during sentencing. The district court explicitly considered the effect of

Culbertson’s incarceration on her youngest son, which was the focus of her argument at

sentencing. And rather than using Culbertson’s religious background as a basis for

sentencing, the district court made two isolated references that highlighted Culbertson’s

advantaged background and her selfish motivation for the crime. Because the district court NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 10

‐ 1871 Page 2

adequately considered Culbertson’s family circumstances and did not rely on her religious

background in sentencing, we affirm.

Culbertson pleaded guilty to stealing $141,665 from her employer, South Division

Credit Union in violation of 18 U.S.C. § 1344. The government, Culbertson, the probation

department, and the district judge all agreed that the properly calculated guidelines

sentencing range is 15 to 21 months. Culbertson, however, asked the court to impose home

confinement, arguing that incarceration would be too harsh given the detrimental effect on

her children, ages nineteen, ten, nine, and two. Although she noted that her two middle

children had a typical dependence on Culbertson, she argued that her role as the primary

caregiver to the three minor children, particularly a young son with a congenital heart

condition, warranted a sentence significantly below the guidelines range. Culbertson also

contended that incarceration is inappropriate because it would not account for potential

collateral consequences, such as the loss of custody of her children and the collapse of her

marriage. (She and her husband had already separated.)

At sentencing, the judge balanced Culbertson’s family circumstances against the

gravity of her crime. The judge discussed the positive family environment in which she was

raised by noting that in contrast to the bulk of the people sentenced by the court, Culbertson

did not come from abject poverty, a broken family, or an environment filled with violence.

The judge pointed out that Culbertson grew up in a family setting imbued with loyalty,

hard work, and integrity, that her close family sent her to Catholic grade school, and that

this background taught Culbertson about “right and wrong and family and community.”

The judge then discussed the aggravating factors, noting that the fraud involved

close to 20 separate transactions and a sizable amount of money, and that Culbertson still

blamed her supervisor and husband for her criminal behavior. The judge also mentioned

the need for general deterrence in the current economic downturn. She then turned to the

mitigating circumstances, recognizing Culbertson’s spotless criminal history, her

willingness to plead immediately, and the health and well

‐ being of her youngest son.

Finally, recalling that Culbertson’s father had worked two jobs to send Culbertson to

Catholic school, the judge was troubled that Culbertson spent the fruits of her fraudulent

behavior on luxuries for her husband rather than on her children’s education, a mortgage,

or medical care.

The court settled on a below

‐ range sentence of 12 months and a day. The court

expressed concern that the youngest child might need surgery and explained that

Culbertson’s term of incarceration could be scheduled to allow her to be with him during

that time. Additionally, the court agreed to allow Culbertson to begin her term ofNo. 10

‐ 1871 Page 3

incarceration after the completion of the school year, presumably for the benefit of her

middle two children since her youngest son was not yet enrolled in school.

On appeal, Culbertson first argues that the district court erred by considering the

effects of her incarceration only on her youngest son and not on her two middle children.

The regime created by Rita v. United States

, 551 U.S. 338 (2007), imposes a procedural

requirement that the district court adequately explain a sentence in light of the factors set

forth in 18 U.S.C § 3553(a). United States v. Miranda

, 505 F.3d 785, 791 (7th Cir. 2007); United

States v. Wallace, 458 F.3d 606, 609 (7th Cir. 2006). It is not, however, obligated to comment

on every argument a defendant raises, particularly an argument that lacks any conceivable

merit. Miranda

, 505 at 792; United States v. Gary

, 613 F.3d 706, 709 (7th Cir. 2010).

The guidelines instruct that “family ties and responsibilities are not ordinarily

relevant in determining whether a departure may be warranted.” U.S.S.G. § 5H1.6. Thus

mitigation arguments relying on the effects of incarceration on children must identify effects

that go beyond those that any child “must suffer when a parent is imprisoned.” Gary

, 613

F.3d at 710; United States v. Schroeder

, 536 F.3d 746, 755 (7th Cir. 2008). Arguments relying

on the general hardships that most families suffer when a parent is imprisoned do not

require discussion at all. Gary

, 613 F.3d at 710.

Neither Culbertson’s sentencing memorandum nor her counsel argued that her

incarceration would cause her middle two sons unusual disruption. Rather, while noting

that their relationship with their father was not strong, Culbertson described their

attachment to their mother as “typical.” Given Culbertson’s failure to identify any

extraordinary effects on her middle two sons, the district court was not obligated to explain

its reason for not treating these effects as mitigating. Gary

, 613 F.3d at 710.

Culbertson characterizes as extraordinary the possibility that her estranged husband

will obtain custody of their children, separating them from their grandfather and

stepbrother. But this court treats the ability of a competent parent who is not incarcerated

to take care of the children as a factor diminishing the harshness of incarceration. United

States v. Jaderany

, 221 F.3d 989, 996 (7th Cir. 2000) (recognizing that “a defendant ʹ s ability to

rely on a supportive spouse or other relatives to look after his children makes his case for a

downward departure less compelling”). Moreover this court has held that no extraordinary

family circumstance arises even if a sentence results in a defendant’s deportation, if the

defendant’s children remain under another parent’s care in the United States. United States

v. Hernandez, 325 F.3d 811, 816 (7th Cir. 2003). If separation

‐ plus

‐ lost

‐ custody caused by

deportation is insufficiently extraordinary, the possibility that Culbertson would lose

custody of her children cannot be characterized as extraordinary. Finally, given that this

court does not recognize the anxiety caused by separation from a parent to be extraordinary,No. 10

‐ 1871 Page 4

1 While the court’s reference to Culbertson’s Catholic education is acceptable in the

context of its discussion of Culbertson’s negative life choices, we caution the court not to

personalize the experience with the phrases “as I did” and “as I was.” it is difficult to characterize separation from a grandparent as extraordinary. See United

States v. Wright

, 218 F.3d 812, 815 (7th Cir. 2000).

Culbertson’s second argument on appeal is that the district court erred by

considering her Catholic upbringing to determine her sentence. Culbertson relies on

U.S.S.G. § 5H1.10, which prohibits the consideration of religion for sentencing. See United

States v. Anderson

, 583 F.3d 504, 510 (7th Cir. 2009). Culbertson points to two comments

made by the district court during the sentencing hearing to show that her Catholic

upbringing was used as an aggravating factor: (1) “You come from a Catholic family and

went through Catholic grade school, as I did. So I know that you’ve been instructed, as I

was, as we grow about right and wrong and family and community,” and (2) “And it is also

troubling that the money from the crime wasn’t to send them off to, say, the Catholic

education that your father worked two jobs to send you to.”

It is ill

‐ advised for district courts to refer to a defendant’s religious background since

such comments are easy to mischaracterize. Nonetheless, the district court here did not rely

on Culbertson’s Catholicism to determine her sentence. When the district court commented

that Culbertson knew “about right and wrong and family and community,” it was

contrasting Culbertson’s negative life choices and her positive background, which included

having role models who demonstrated loyalty, integrity, and commitment to family and

community and attending a school that taught values of right and wrong. The court

described the contrast as “troubling” but did not state or imply that Culbertson’s religion

itself was a sentencing factor. 1

The court’s reference to Culbertson’s decision not to use the money to pay for her

children to attend Catholic school reflects the district court’s frustration with the selfish

motivation for Culbertson’s crime, not a disagreement with her spiritual direction. The

court believed Culbertson’s conduct was especially shameful because the stolen money was

used for “a Harley Davidson motorcycle or a cool car” rather than for medical care, a

mortgage, or “the Catholic education that [Culbertson’s] father worked two jobs” to

provide.

The district court gave adequate consideration to Culbertson’s family circumstances

and did not rely on her religious background in sentencing. Accordingly, the judgment ofNo. 10

‐ 1871 Page 5

the district court is AFFIRMED.