UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

v. ) CASE NO.: 1:15-CR-17-TLS

)

GLORIA BERNDT )

OPINION AND ORDER

The Defendant, Gloria Berndt, pled guilty to making a false statement against the United

States, in violation of 26 U.S.C. § 7206(1). An officer with the United States Probation Office

prepared a Presentence Investigation Report (PSR) prior to the Defendant’s sentencing.

According to the PSR, under the United States Sentencing Guidelines, the Defendant’s total

offense level is 15, and her criminal history category is I, resulting in a guideline calculation of

18–24 months of imprisonment. Because the instant offense is a Class E felony, the Defendant is

statutorily eligible for a sentence of probation of not less than one nor more than five years. See

18 U.S.C. § 3561(c)(1). Under the Guidelines, however, the Defendant is ineligible for

probation—absent the granting of a variance—because the applicable guideline range is in Zone

D. 

On July 27, 2015, the Defendant filed a Sentencing Memorandum [ECF No. 19],

requesting a downward variance of four levels, which would result in a total offense level of 11

and a guideline range of 8–14 months of imprisonment. On August 4, 2015, the Government

filed a response [ECF No. 20], in which the Government did not object to the Defendant’s

request. For the reasons stated in this Opinion and Order, the Court will grant the Defendant’s

request for a downward variance. 
ANALYSIS

When sentencing a defendant, the district court “must first calculate the Guidelines range,

and then consider what sentence is appropriate for the individual defendant in light of the

statutory sentencing factors, 18 U.S.C. § 3553(a).” Nelson v. United States, 555 U.S. 350, 351

(2009); see United States v. Panice, 598 F.3d 426, 441 (7th Cir. 2010) (citing Nelson, and setting

forth the two-step process that a sentencing court must engage in to determine a defendant’s

sentence). When calculating the guideline range, “[a] district court may rely on facts asserted in

the PSR if the PSR is based on sufficiently reliable information.” United States v. Rollins, 544

F.3d 820, 838 (7th Cir. 2008). “The defendant bears the burden of proving that the PSR is

inaccurate or unreliable,” and if he offers no evidence to question the PSR’s accuracy, the Court

may rely on it. Id.

Here, neither party contests the guideline calculations pursuant to the PSR. The

Guidelines assign 16 levels as the base offense level for the Defendant’s offense. U.S.S.G. §

2T1.1(a)(1). The probation officer added 2 levels because the Defendant failed to report or to

correctly identify the source of income exceeding $10,000 in any year from criminal activity, §

2T1.1(b)(1), resulting in an adjusted offense level of 18. The adjusted offense level was lowered

by 3 levels for acceptance of responsibility and for assisting authorities in the investigation or

prosecution of the Defendant’s own misconduct, § 3E1.1(a–b), resulting in a total offense level

of 15. Combining this offense level with the Defendant’s criminal history category of I results in

a guideline range of 18–24 months of imprisonment.

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A. § 3553(a) Factors

In imposing a sentence, § 3553(a) requires a court to consider the nature and

circumstances of the offense and the history and characteristics of the defendant, and impose a

sentence that is sufficient, but not greater than necessary, to satisfy the purposes of sentencing:

adequately capturing the seriousness of the offense, providing just punishment, promoting

respect for the law, affording adequate deterrence, protecting the public, and rehabilitating the

defendant. In making this determination, a district court may not presume that the Guidelines

sentence is the correct one. Nelson, 555 U.S. at 352; Rita v. United States, 551 U.S. 338, 351

(2007). Ultimately, a district court must make an independent determination, taking into account

the types of sentences available, the other relevant § 3553(a) factors, and the arguments of the

parties. See Gall v. United States, 552 U.S. 38, 49–50 (2007).

In her Sentencing Memorandum, the Defendant requests a four-level variance due, in

part, to the Defendant’s age, personal history, and lack of any prior criminal activity. Upon

consideration of the above § 3553(a) factors, the Court finds that the Defendant’s request for a

four-level downward variance is well-taken. Given the history and characteristics of the

Defendant, coupled with the Defendant’s lack of a criminal history prior to the instant, nonviolent offense, the Court finds that a guideline range of 8–14 months of imprisonment is

sufficient, but not greater than necessary, to satisfy the purposes of sentencing. This

determination is based on the evidence in the record thus far. The Court has not yet heard from

the Defendant, and she may wish to make a statement on her own behalf in mitigation of

punishment. Indeed, she is entitled to make such a statement, as is the Government. See Fed. R.

Crim. P. 32(i)(4)(A)(ii–iii). Therefore, the Court reserves a determination of the appropriate term

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of imprisonment until after the Defendant and the Government have had an opportunity to

address the Court.

CONCLUSION

For the reasons stated above, the Court GRANTS the Defendant’s request for a four-level

variance, but WITHHOLDS determining the sentence to impose until the time of the sentencing

hearing and after providing the Defendant and the Government an opportunity to address the

Court. The sentencing hearing scheduled for September 2, 2015, at 1:30 PM, is CONFIRMED.

SO ORDERED on August 18, 2015.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

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