UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4282

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BOBBIE LYNN PEREZ, a/k/a Bobbie Lynn Wallace,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Louise W. Flanagan, 

District Judge. (5:10-cr-00396-FL-1)

Submitted: June 6, 2013 Decided: June 13, 2013

Before MOTZ and GREGORY, Circuit Judges, and Ellen L. HOLLANDER, 

United States District Judge for the District of Maryland, 

sitting by designation.

Affirmed by unpublished per curiam opinion.

Jane C. Norman, BOND & NORMAN, Washington, D.C., for Appellant. 

Thomas G. Walker, United States Attorney, Jennifer P. 

May-Parker, Joshua L. Rogers, Assistant United States Attorneys, 

OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Bobbie Lynn Perez pled guilty to one count of mail 

fraud, 18 U.S.C.A. § 1341 (West Supp. 2012), and three counts of 

wire fraud, 18 U.S.C.A. § 1343 (West Supp. 2012). The district 

court varied above the Guidelines range and sentenced Perez to 

four years of imprisonment. Perez appeals her sentence, 

contending that the district court erred when it failed to give 

notice that it intended to impose a sentence above the 

Guidelines range, departed upward without adequate 

justification, and incorrectly determined the amount of loss,

U.S. Sentencing Guidelines Manual § 2B1.1(b)(1)(C) (2011). For 

the reasons explained below, we affirm.1

While Perez was pregnant in early 2010, she agreed to 

have her child adopted by three different families, located in 

California, New York, and North Carolina. From March to May 

2010, Perez requested money for living and medical expenses from 

all three families during her pregnancy and all three sent her 

money, a total of $11,897. During the same time period, Perez 

 1 We scheduled argument in this case for May 17, 2013. 

However, due to counsel’s illness, argument could not be held. 

On May 31, 2013, Perez moved to waive oral argument and to 

submit the case on the briefs; the Government does not oppose 

the motion. We grant the motion because we conclude that the 

facts and legal contentions are adequately presented in the 

record and briefs, and that oral argument would not aid the 

decisional process.
3

spent over $16,000 at a casino in Las Vegas, Nevada. Perez’s

baby was born prematurely in May 2010 and adopted by the couple 

from New York, known in this litigation as “TM and SK.” Perez 

did not inform the other families that the baby had been born. 

She continued to request and receive money from the family in 

California.

After Perez’s guilty plea to mail and wire fraud, the 

probation officer calculated her advisory Guidelines range as 

18-24 months, based on a loss of more than $10,000 but not more 

than $30,000. The probation officer also suggested that an 

upward departure might be justified because of the emotional 

trauma caused to the families that did not adopt Perez’s baby. 

See U.S.S.G. § 2B1.1, cmt. n.19(A)(ii) (departure may be 

warranted for substantial non-monetary harm). Perez objected to 

the inclusion in the loss amount of all the money she received

from the families during her pregnancy, arguing that the couple 

who adopted her baby had not suffered any pecuniary harm.

At sentencing, the district court decided that all 

three families were victims who suffered pecuniary harm because 

all three reported that they would not have sent money to Perez 

during her pregnancy had they known that she was offering her

child to others for adoption as well as to them. The court 

overruled Perez’s objection and adopted the Guidelines 

calculation recommended in the presentence report. The court 
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then imposed a variance sentence above the Guidelines range, 

explicitly citing the sentencing factors set out in 18 U.S.C. 

§ 3553(a) (2006), and describing Perez as a predator from whom 

the public needed protection. After pronouncing sentence, the 

court added that it could have reached the same sentence by 

means of a departure under Application Note 19 because of the 

severe non-monetary trauma suffered by the families who did not 

adopt Perez’s child, and the court explained how it could have 

structured the departure.

We review a sentence for reasonableness under an abuse 

of discretion standard, Gall v. United States, 552 U.S. 38, 51 

(2007), which requires consideration of both the procedural and 

substantive reasonableness of a sentence. Id.; see United 

States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

Perez first contends that the district court made a 

departure above the Guidelines range, and that it was thus 

required to give her reasonable advance notice of its intention 

to depart or vary above the Guidelines range, which the district 

court failed to do. Such notice is required only when the 

sentencing court departs from the Guidelines range. See Burns 

v. United States, 501 U.S. 129, 135 (1991). However, when the 

sentencing court varies from the Guidelines range, the notice 

requirement does not apply. Irizarry v. United States, 553 U.S. 

708, 713-14 (2008). Here, the district court specified that it 
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was imposing a sentence above the Guidelines range based on its 

consideration of the sentencing factors set forth in § 3553(a). 

Such a sentence constitutes a variance, not a departure. See

United States v. Rivera-Santana, 668 F.3d 95, 100 n.6 (4th 

Cir.), cert. denied, 133 S. Ct. 274 (Oct. 1, 2012). Therefore, 

prior notice to Perez was not required. Irizarry, 553 U.S. at 

713-14. Perez’s reliance on United States v. Fancher, 513 F.3d 

424 (4th Cir. 2008) (holding that notice of possible variance 

given in the presentence report is insufficient), is unavailing 

because Fancher was abrogated by Irizarry.2

Next, Perez maintains that the district court made a 

significant departure without sufficient explanation and without 

addressing the mitigating factors she advanced, such as her 

difficult early life and her addictions to drugs and alcohol. A 

“deferential abuse-of-discretion standard applies to any 

sentence, whether inside, just outside, or significantly outside 

the Guidelines range.” Rivera-Santana, 668 F.3d at 100-01 

(internal citation and quotation marks omitted). In reviewing a

variance, the appellate court must give due deference to the 

 2 The government contends that Perez did not preserve this 

issue because she did not object to a lack of notice in the 

district court, and that the issue should thus be reviewed for 

plain error. United States v. Olano, 507 U.S. 725, 732 (1993). 

We need not decide whether de novo or plain error review is 

appropriate because no error occurred and Perez’s claim fails 

under both standards of review.
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sentencing court’s decision. United States v. Diosdado-Star, 

630 F.3d 359, 366 (4th Cir.), cert. denied, 131 S. Ct. 2946 

(2011). The issue was preserved for appeal when Perez “[drew] 

arguments from § 3553(a) for a sentence different than the one 

ultimately imposed,” which “sufficiently alert[ed] the district 

court of its responsibility to render an individualized 

explanation addressing those arguments.” Lynn, 592 F.3d at 578.

As noted above, Perez mistakenly characterizes the

variance sentence as a departure. While the court did not give 

an extensive “individualized assessment” of the facts on which 

it based its decision to depart from the Guidelines and impose a 

four-year sentence, see Lynn, 592 F.3d at 576, the court did 

state that Perez was a predator from whom the public needed to 

be protected. The court also noted that Perez’s conduct had 

caused significant emotional trauma to two of the three 

families. The implied finding was that these factors outweighed 

the mitigating factors Perez presented. Moreover, the district 

court explicitly stated that it found “a sentence of four years 

is the one that accomplishes the purposes of sentencing. That’s 

a sentence that’s sufficient, but not greater than necesssary.”

Further, the district court stated that it could have 

alternatively entered the same sentence by departing upward from 

the Guidelines. As the PSR and the court noted, Application 

Note 19(A) to § 2B1.1 states that “[t]here may be cases in which 
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the offense level determined under this guideline substantially 

understates the seriousness of the offense” in which case, “an 

upward departure may be warranted.” Application Note 19(A)(ii) 

specifically provides that in determining whether an upward 

departure is warranted, the court may consider whether “[t]he 

offense caused or risked substantial non-monetary harm” such as 

“severe emotional harm.” U.S.S.G. § 2B1.1, App. n.19(A)(ii). 

The district court found that Perez’s offense caused 

“substantial nonmonetary harm” in that “[a]t least two of the 

three families expecting to adopt [the] child suffered 

significant emotional trauma.” As a result, the court 

“discount[ed] the suitability of the [sentencing] range” for 

offense levels 11 through 17 “as not capturing the harm” Perez 

caused, and concluded that a total offense level of 18 yielded a 

sentencing range that suitably captured the harm. Thus, the 

court’s explanation for its sentence was adequate.

Last, Perez contends that the district court erred in 

finding that the family who adopted her child, TM and SK,

suffered a loss under U.S.S.G. § 2B1.1(b)(1)(C). Had the court 

found otherwise and excluded from the loss amount the money TM 

and SK sent to Perez, the loss amount would have been reduced to 

$7,043. As a result, Perez’s base offense level would have been 

reduced by two levels, and her Guidelines range would have been 

reduced from 18-24 months to 12-18 months. The district court’s 
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calculation of the loss amount attributable to a defendant is a 

factual determination reviewed for clear error. See United 

States v. Mehta, 594 F.3d 277, 281 (4th Cir. 2010).

Enhancements under § 2B1.1(b) are determined by the 

amount of loss resulting from the fraud. The loss amount is the 

greater of the actual loss or the intended loss. U.S.S.G. 

§ 2B1.1, cmt. n.3(A). “Actual loss” is defined as “the 

reasonably foreseeable pecuniary harm that resulted from the 

offense,” and “intended loss” is the pecuniary harm that was 

intended from the offense. Id., cmt. n.3(A)(i)-(ii). 

Application Note 3(C) to § 2B1.1 provides that the district 

court need only make a reasonable estimate of the loss and “the 

court’s loss determination is entitled to appropriate 

deference.”

The record reflects that during the time Perez 

solicited and received money from the three families, she spent 

over $16,000 gambling at a Las Vegas casino. The record also 

shows that, with respect to at least $8,100 of the money, 

including $4,025 from TM and SK, the families sent and Perez 

received the wire transfers at the casino. Further, although 

Perez asked the families for the money to assist with her living 

and pregnancy-related medical expenses, the record contains no 

evidence that Perez actually used any of the money for those 

purposes. On the basis of the record evidence, the district 
9

court found that TM and SK, like the other prospective parents, 

suffered actual loss because “if they had known that this was 

going on they would not have given the defendant money.”

In light of the Sentencing Commission’s direction that

“actual loss” includes “pecuniary harm that the defendant . . . 

under the circumstances[] reasonably should have known was a 

potential result of the offense,” § 2B1.1, cmt. n.3(A)(iv), we 

cannot say that the district court clearly erred in calculating 

the loss amount to include the money TM and SK sent to Perez.3

 

Mehta, 594 F.3d at 281. Moreover, fraud encompasses deceptive 

acts which deprive others of “the intangible right to control 

the disposition of [their] assets.” United States v. Gray, 405 

F.3d 227, 234 (4th Cir. 2005); see also United States v. 

Gillion, 704 F.3d 284, 295-96 (4th Cir. 2012) (finding employee, 

who concealed his identity to trick his employer into selling 

him trailers for use in a competing business, committed fraud by 

interfering with his employer’s right to dispose of its 

property). Finding no reversible error, we must affirm.

 3 The record does not reveal when Perez decided that TM and 

SK would actually adopt her baby, and there is nothing in the 

record to suggest that Perez intended to keep her baby. 

Nonetheless, the loss amount does not change even if the only 

reasonable conclusion were that Perez intended to defraud two of 

the three families who sent her money while seeking to adopt her 

baby, but not all three. For, the loss amount is the greater of 

the actual loss or the pecuniary harm that was intended to 

result from the offense. U.S.S.G. § 2B1.1, cmt. n.3(A).
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We therefore affirm the sentence imposed by the

district court.

AFFIRMED