2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-5-2012

USA v. Charlene Apelian

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2730

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Charlene Apelian" (2012). 2012 Decisions. Paper 1627.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/1627
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-2730

_____________

UNITED STATES OF AMERICA

v.

CHARLENE APELIAN,

 Appellant

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Crim. No. 10-cr-00318-001)

District Judge: Honorable Freda L. Wolfson

____________

Submitted Under Third Circuit LAR 34.1(a)

December 9, 2011

____________

Before: HARDIMAN, BARRY, Circuit Judges and RUFE,

*

Appellant Charlene Apelian appeals her judgment of sentence after pleading guilty 

District Judge

(Opinion Filed: January 5, 2012)

____________

OPINION

____________

BARRY, Circuit Judge

 *

 Honorable Cynthia M. Rufe, United States District Judge for the Eastern District of

Pennsylvania, sitting by designation.
2

to unlawful use of an access device. We will affirm. 

I.

Between May 2005 and June 2007, Apelian used a bank account routing number 

belonging to Realogy Corporation to illegally divert money to her personal accounts. The 

vast majority of these payments were made to Apelian’s American Express credit card 

account, which she used to make purchases at a variety of retailers, restaurants, and 

service providers. All told, Apelian obtained a total of $294,864.02 from her unlawful 

use of the routing number. After her conduct was discovered, Apelian was charged in a 

one-count information with unlawful use of an access device in violation of 18 U.S.C. § 

1029(a)(2). On May 11, 2010, she waived indictment and pleaded guilty to the 

information pursuant to a plea agreement. 

On June 13, 2011, the District Court held a sentencing hearing. The Court 

calculated a total offense level of 15 with a criminal history category of II, resulting in an 

advisory Guidelines range of 21 to 27 months. Turning to the factors of 18 U.S.C. § 

3553(a), Apelian argued that a probationary sentence was sufficient to satisfy the 

purposes of sentencing, and that a term of imprisonment would be unduly punitive due to 

her financial situation and medical needs. In particular, Apelian noted that she suffered 

from fibromyalgia, chronic fatigue and immune dysfunction syndrome, post-traumatic 

stress disorder, and certain other mood and anxiety disorders. Apelian treated these 

disorders with a regimen of medications and herbal supplements, which she claimed took 
3

her and her doctors years to develop. She argued that imprisonment would disrupt her 

treatment regimen and that the Bureau of Prisons (BOP) could not provide all the 

medications and supplements that were part of her regimen. Apelian also argued that her 

physical and mental health would likely deteriorate in the prison setting. With respect to 

her finances, Apelian argued that a term of imprisonment would render her unable to 

prevent foreclosure proceedings on her home, and her Social Security disability benefits 

would be discontinued during her imprisonment. After hearing argument, the District 

Court concluded that Apelian’s circumstances did not merit a probationary sentence, but 

that a downward variance to a sentence of 18 months’ imprisonment was appropriate. 

Apelian timely appealed. 

II.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and review 

Apelian’s challenge to the substantive reasonableness of her sentence for abuse of 

discretion. Gall v. United States, 552 U.S. 38, 46 (2007). We have held that the 

“substantive reasonableness inquiry must be highly deferential” because “the sentencing 

judge, not the court of appeals, is in a superior position to find facts and judge their 

import under § 3553(a) in the individual case.” United States v. Merced, 603 F.3d 203, 

214 (3d Cir. 2010) (internal quotation omitted). As this Court has explained:

For a sentence to be substantively reasonable, a district court must apply the 

§ 3553(a) factors reasonably to the circumstances of the case. A sentence 

that falls within the recommended Guidelines range, while not 

presumptively reasonable, is less likely to be unreasonable than a sentence 

outside the range. The pertinent inquiry is whether the final sentence, 
4

wherever it may lie within the permissible statutory range, was premised 

upon appropriate and judicious consideration of the relevant factors.

United States v. Lessner, 498 F.3d 185, 204 (3d Cir. 2007) (internal citations and 

quotation marks omitted). “The party challenging the sentence bears the ultimate burden 

of proving its unreasonableness . . . .” Id. Ultimately, the sentence must be affirmed 

“unless no reasonable sentencing court would have imposed the same sentence on that 

particular defendant for the reasons the district court provided.” United States v. Tomko, 

562 F.3d 558, 568 (3d Cir. 2009).

We conclude that the District Court did not abuse its discretion in refusing to vary 

downward to a probationary sentence. After hearing rather extensive argument from the 

parties, the District Court gave careful and judicious consideration to Apelian’s 

arguments regarding her mental and physical health, her medication needs, and her 

financial situation. With respect to Apelian’s physical health, the District Court agreed 

that her autoimmune disease was “of concern,” but noted that individuals with severe 

diseases are routinely treated in the BOP. The District Court also observed that much of

Apelian’s treatment regimen consisted of non-FDA-approved supplements, which it 

deemed less compelling than prescription medication treatment. In any event, the District 

Court cited documentary evidence from the BOP to conclude that Apelian’s medication 

needs could be adequately addressed in the BOP system, either through the BOP

formulary, the purchase of supplements at the prison commissaries, or by a non-formulary 

request from Apelian’s treating physician. With respect to her financial situation, the 
5

District Court found Apelian’s arguments undermined by the fact that, despite financial 

difficulties with her bills and mortgage, Apelian had recently purchased a new car and 

had otherwise made poor financial choices. 

The District Court clearly found that Apelian’s arguments were entitled to some

weight, as it granted a variance three months below the bottom of the Guidelines range. 

Although Apelian believes that her arguments warranted an even greater variance, we 

have held that a district court’s “decision to accord less weight to mitigation factors than 

that urged by [the defendant] does not render the sentence unreasonable.” United States 

v. Young, 634 F.3d 233, 243 (3d Cir. 2011). The District Court properly considered other 

factors under § 3553(a), including the fact that Apelian’s criminal conduct was a two-year 

scheme involving the theft of almost $300,000 that was used to purchase things well

beyond the mere necessities of life. The District Court also considered, as it was entitled 

to do, the fact that Apelian had committed previous financial and fraudulent crimes, 

including passing bad checks and fraudulently using a neighbor’s checks and bank 

account information. Despite these other fraudulent crimes, Apelian had never served a 

custodial sentence. Quite simply, the District Court did not abuse its discretion in this 

case. 

III.

For the foregoing reasons, we will affirm the judgment of sentence.