UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4167

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TONIA BEST MILNER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. James C. Dever III,

District Judge. (5:07-cr-00158-D-1)

Submitted: September 30, 2008 Decided: October 14, 2008

Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. George E. B. Holding, United States Attorney, Anne M.

Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
*

Milner concedes on appeal that the district court properly

calculated her sentencing range under the Guidelines. 

2

PER CURIAM:

Tonia Best Milner pled guilty to two counts of bank

fraud, in violation of 18 U.S.C. §§ 1344, 2 (2000). The district

court calculated that Milner’s advisory Guidelines range was fiftyone to sixty-three months of imprisonment, and varied upward from

that range to sentence her to seventy-two months’ imprisonment.

Milner appeals, alleging her sentence is procedurally and

substantively unreasonable.*

 For the reasons that follow, we

affirm.

After United States v. Booker, 543 U.S. 220 (2005), we

review a sentence to determine whether it is unreasonable, applying

a “deferential abuse-of-discretion standard.” Gall v. United

States, 128 S. Ct. 586, 591, 594 (2007). A district court must

engage in a multi-step process at sentencing. First, the

sentencing court must calculate the appropriate Guidelines range by

making any necessary factual findings. Id. at 596. The court

should then afford the parties “an opportunity to argue for

whatever sentence they deem appropriate.” Id. Next, it should

consider the resulting advisory sentencing range in conjunction

with the factors set out in 18 U.S.C.A. § 3553(a) (West 2000 &

Supp. 2008), and determine whether the § 3553(a) factors support

the sentence requested by either party. Id.
3

To determine whether a sentencing court abused its

discretion, we undertake a two-part analysis. United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007). First, we examine the

sentence for “significant procedural errors,” and second, we

evaluate the substance of the sentence. Id. Significant

procedural errors include “‘failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence . . . .’” Id. (quoting Gall, 128 S.

Ct. at 597). “Substantive reasonableness review entails taking

into account the ‘totality of the circumstances, including the

extent of any variance from the Guidelines range.’” Id. (quoting

Gall, 128 S. Ct. at 597). 

While we may presume a sentence within the Guidelines

range to be reasonable, we may not presume a sentence outside the

range to be unreasonable. Id. Moreover, we must afford deference

to the district court’s decision that the § 3553(a) factors support

imposing a variant sentence and to its determination as to the

extent of that variance. Id. at 473-74. “Even if we would have

reached a different sentencing result on our own, this fact alone

is ‘insufficient to justify reversal of the district court.’” Id.

at 474 (quoting Gall, 128 S. Ct. at 597). 
4

Here, the district court followed the necessary steps in

sentencing Milner, first providing notice of its intent to vary

above the sentencing range applicable under the Guidelines. After

properly calculating the Guidelines range, hearing the parties’

arguments regarding sentencing, and taking into account the

§ 3553(a) factors, the district court concluded a within-Guidelines

sentence was insufficient to punish the serious and unique offense,

to deter similar crimes, or to promote respect for the law. In

concluding the offense conduct was unique, the district court cited

the duration of the underlying fraudulent scheme (almost eight

years), the scope of the offense, the number of transactions

involved (137 separate fraudulent transactions), the amount of

money stolen (more than $600,000), and the elaborate methods

employed to effectuate the fraud. Perhaps most significant,

though, was that, after defrauding her employer for almost a year,

Milner quit her job only to later return to resume the fraud, which

continued, unabated, for approximately six more years. With each

transaction, the district court noted, Milner had the opportunity

to reflect upon her actions and make a willful decision to continue

with her crime. 

We find no abuse of discretion in the district court’s

decision to sentence Milner to seventy-two months’ imprisonment,

nine months longer than the high end of her Guidelines range.

Accordingly, we affirm the district court’s judgment. We dispense
5

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED