## FIL ED May21 , 20 12 LEO NARD GREEN, Clerk NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION

F ile Nam e: 12a0521n.06 No. 11-5587 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, P laintif f-App ellee,

v. ROBERT RAI

NEY, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN

NESSEE O P I N I O N

BEFORE: NORRIS, CLAY, and GR IF F IN, Circ uit Jud ges.

ALAN E. NORRIS, Circuit Judge. Def endant Robert Rainey and his wife, Eliz abeth, wer e char g ed in a one-c ount information with conspirac y to defr aud Eliz abeth’ s employ er, Direc t Gene ral I nsuranc e Corporation (“ Di rec t Gene ral” ), by issuing false claims chec ks and then diverting the funds t o their own use, i n violation of 18 U.S.C. § 371. They bo t h p l ea d ed gu i l ty ; howeve r, onl y Robert’s sentenc e is the sub j ec t o f t his appea l. He does not contend that the district court miscalculate d the appropr iate g uidelines rang e. Rather, he argues that his sentenc e was subst a n ti v e ly

unrea sonable b ec au s e t he district court place d too much emphasis upon the deter rent eff ect of a leng thy sentenc e for white-c ollar crime. Specifica lly , he notes that there is no empirica l evidenc e t o support a guidelines section that ties the l eng th of sentence to the amount of l oss cause d by the fra ud. I n his vie w, the district c ourt should have ignor ed that g uidelines section on policy g rounds and g rante d him a varia

nce. I nstead, the court sentenc ed him at the low end of the g uidelines rang e.No. 11-5587

United States v. Rainey I n addition, defe ndant contends that the district c ourt abused its discretion when it order ed him to give up his ca

ble television subscription as par t of his supervised re lease

. We affir m the judgme nt. I. Eliz abeth Rainey worke d as a supervisor in the claims depar tment of Direc t Gene ral. I n that capa city , she would issue chec ks to satisfy leg itimate claims. Howe v er, she abused this authority by enter ing false pay

ment information into Di re ct Gene ral’s claims manag ement sy stem, which resulted in the issuance of fra udulent chec ks that ap p ea re d t o be related to leg itimate claims. A numb er o f i n d ividuals, including defe ndant, rec eived fra udulent chec ks as part of this scheme

. Def endant r ece ived 224 such c hecks dur ing the conspirac y . The base offe nse level for the crime of conviction, 18 U.S.C. § 371, was six

. Ho wever, beca use the loss exceede d $400,000, an upwar d adjustment of fourtee n levels was imposed pursuant to U.S.S.G. § 2B1.1( b)(1) (H). He also rec eived a four- point upwar d adjustment for his role in the 1 offe nse, U.S.S.G. § 3B1.1( a), and a three -leve l reduc tion for acc eptanc e of responsibility , U.S.S.G. § 3E1.1. The total offe nse level was 21. Def endant had no prior arr ests or convictions and, hence , his g uidelines rang e was betwee n 37 and 46 months of incar cer ation. Although defe nse counsel did not object to the g uidelines calc ulation, he filed a sentenc ing memorandum urg ing the district court to g rant his client a varia nce beca use the g uidelines section for the amount of loss, U.S.S.G. § 2B1.1( b)(1) , results in sentence s that are g reater than ne cessa ry to satisfy the g oals of sente ncing

.

The 2010 ve rsion of the g uidelines was use d in this case. 1 - 2 -No. 11-5587

United States v. Rainey At sentenc ing, defe nse counsel reiter ated his argument in favor of a varia nce by taking issue with U.S.S.G. § 2B1.1( b)(1) (H), which presc ribes a fourtee n-leve l incre ase in the base offe nse level i f t h e amount of loss is more than $400,000 but less than $1,000,000. First, he argued t h at t h e g uidelines section was not based upon any empirica l data. When that is the case , the Supreme Court has rec og nized that a district court may “var y from the Guidelines rang es based s o l el y o n p olicy considerations, including disag ree ments with the Guidelines.” See Kimbrough v. United States , 552 U.S. 85, 101 (2007) (interna l alterations and quotation marks omitted). Counsel went on to note that the penalties associate d with the g uidelines section had been raised substantially since 1987, when they called for only an eig ht-level incre ase. I f the 1987 version was used, then the g uidelines rang e for defe ndant would fall dramatically to 18 to 24 months of imprisonment. That considerat i on, coupled with the other sentenc ing fac tors listed in 18 U.S.C. § 3553(a) , justified a sentenc e of time

serve d coupled with house arr est. Acc ording to counsel, this approa ch would also permit defe ndant to return to wor

k and beg in making inr oads on re stitut ion. The court responde d by noting that even wer e defe ndant to pay 10% of his income over many y ear s, he would not come close to paying back the amount stolen. The judge then asked defe ndant wher e the money

had g one and r ece ived this response: Mostly drug s. I had an Oxy contin addiction, and on the street, eac h one was around $40 a piece, and I

was takingtwo a day . That’s whe re most of it went. Other than that, it was just basica ll y u s b ei n g a lower middle class family living li ke an upper middle class family

. The court rec og nized the Oxy contin problem and the complexit y of addiction. I t went o n to summarize defe ndant’s criminal activity , which spanned a number of y ear s, included many chec ks, - 3 -No. 11-5587

United States v. Rainey and involved sever al individuals. Howeve r, the court also rec og nized that defe ndant had no criminal history , appea

red to be a “har d working g uy ,” and was “g enuinely reg retful of the conduct.” That said, the court observe d that a sentenc e has to ref lect the seriousness of the offe nse and also provide just punishment. Speci fi cally , it focuse d on deter renc e, which it rec og nized as an important sentenc ing fac tor, noting that “[t] he g overnme nt makes a pretty g ood argument, in order to g et some deter

renc e, may

be y ou oug ht to be at the three and four- y ear level to g et any deter renc e at all. ” The judge also acknow ledg ed the studies submitt ed by defe nse counsel, which concluded that longe r sentenc es had little deter rent e ffe ct in white collar crimes. The court then revie wed the other factors—protec tion of the public and the need for vocational tra ining—be fore pronouncingsentenc e: [I ]n order to meet the objectives under 18 U.S.C., Section 3553(a) , that’s the o b j ec t ive of deter

ring others from committing these crimes, the objective of punishing the conduct that occur red, considering the amount o f m o ney that was taken, the objective under the g uidelines of g iving honor to the g uidelines

. . . the sentenc e in this case that is nece ssary beca use of the repe titive nature of the conduct,

. . . many chec ks over a long period of time, no justi fica tion of any

kind that would be a leg al justification at all, is that we should impose the minimum sentenc e under the g uidelines . . . the 37 months. The court also imposed a three

- ye a r p e r io d o f s u

p e r v is e d r e le a se while discussing defe ndant’s rele ase, the court stated: “I ’m g oing to require that y ou do a few things, like canc el cable TV, the whole Un i t ed States and y our neig hbor and ever y other taxpay er and ever y other premium pay er can’ t understand why y ou have g ot cable TV.” The court went on to rule favor ably on other matters: it allowed defenda

n t to repor

t to prison voluntarily ; it waived interest on the $744,192.48 amount

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United States v. Rainey of restitution; and it ag ree d to rec ommend a 500-hour drug treatment prog ram. Def ense counsel did not object to any

of the c ourt’s ruling s. II. 1. Substantive Reasonablene ss Sentence s can be challeng ed for both pr ocedur al and substantive rea sonablene ss. See Gall v. United States , 552 U.S. 38, 51 (2007). The former is conce rned wi th whether the di strict court proper ly calc ulated the g uidelines, adequately considere d the sentenc ing fac tors listed in § 3553(a) , proper ly explained the sentenc e, and rec og nized that the g uidelines wer e no longe r mandatory

. Id. Substantive rea sonablene ss, on the ot her hand, involves g ener al balance and fairne ss. See United States v. Benson , 591 F.3d 491, 500 (6th Cir. 2010). We consider whether the district court imposed the sentenc e ar b i t rarily , failed to consider rele vant sentenc ing fac tors, or g ave an unrea sonable amount of weig ht to a particula r fac tor. Id. ; United States v. Conatser , 514 F.3d 508, 520 (6th Cir. 2008) (citing United States v. W ebb , 403 F.3d 373, 385 (6th Cir. 2005)). We revie w both proce dural and substantive rea sonablene ss for an abuse of discretion. Gall , 552 U.S. at 51. Moreove r, an appellate court may , but is not required t o , ap ply a presumption of rea sonablene ss to a sentenc e within the guide lines rang e. Id. ; Rita v. United States , 551 U.S. 338, 347-48 (2007). Def endant focuses upon the district court’s emphasis on dete rre nce to justify its sentenc e. Counsel stressed at sentenc ing that aca demic studies had repe atedly conclude d t h at l ong er prison terms do not have a signific ant deter rent eff ect upon white-c ollar criminals. Whil e the district court acknow ledg ed the exis tence of such studies, it did not acc ord them a g reat deal of weig ht. I nstead, it relied upon its own belief that significa nt prison terms are require d in the white-c ollar conte x t. - 5 -No. 11-5587

United States v. Rainey Whil e it is true that a district court may place less emphasis on a g uidelines section that was not promulg ated by the Se n tencing Commi ssion based upon its usual prac tice of mustering empirica l data and sounding the judiciary for is own past prac tices, it is not require d to do so. Kimbrough , 552 U.S. at 108-10; s ee P epper v. United States , 131 S. Ct. 1229, 1247 (2011) (“[O]ur post- Booke r decisions make clea

r that a district court may in appropr iate case s impose a non-Guidelines sentenc e based on a disag ree men t wi t h t h e Commi ssion’s views.”)

. Our revie w of the sentenc ing hear ing indicates that the district court provided a det ai l ed rationale for its sentenc e. Among the fac tors considere d by the court wer e the nature of the offe nse (an extended conspirac y lasting for y ear s and involving many individuals) , deter renc e, defenda

nt’s persona l char acte ristics (a family man and a “har d working g uy ”), the need for vocational training and treatment (re commendation for a 500-hour substance abuse prog ram), and protec tion of the public. I n short, the district court considere d all of the fac tors contemplated by the g uidelines an d § 3553(a)

. Whil e deter renc e was undoubtedly important, it was not overly emphasized in light of all the oth er as p ects of the case that the court considere d. Moreove r, the c ourt rec og nized that it could, if it c hose to do so, acc ept the ar g ument for a shorter sentence argued by counsel. I t opted not to do so. Had it g rante d t h e v ar i an ce , we would likely aff irm that decision g iven that we revie w for an abuse of discretion. On the other hand, there is no abuse of di s cr et i o n i n a d ecision not to g rant a varia nce. A within-g uidelines sentenc e is presumptively rea sonabl e. Fu rt h ermore , the court clea rly considere d defe ndant as an individual, expressed sy

mpathy for his strug g le with addiction, listened to his story , g rante d him discretionar y

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United States v. Rainey benef its, such as self-sur

rende r, and sentenc ed him at the bottom of the g uidelines rang e. This is not a sente nce that could be ter med ar bitrary , and it is not subst antively unrea sonable. 2. Terms of Super

vised Release The district court stated at the sentenc ing hear ing that defe ndant could not continue to have

a cable television subscription. I t is unclea r whether the court intended t h at t o b e a condition of supervised r elea se, bec ause it is not list ed as a condition in the judgment. We need not re ach this issue beca use i t is not ripe for revie w. I n United St ates v. L ee , 502 F.3d 447 (6th Cir. 2007), a defe ndant was convicted of using a computer to persua de a young g irl to eng ag e in sexual acts. He pleade d g uilty and the sentenc ing co u rt i n cl u d ed as a condition of supervised that the defe ndant m ay h av e to participate in a sex offe nder treatment prog ram. Id. at 448. This court held that the defe ndant would be better serve d if his direc t appea l of that condition was defer red until his rele ase from prison when he could challeng e it under 18 U.S.C. § 3583(e)

. Id. at 451. A simi l ar rationale applies here

. Be cause it is unclea r whether the forf

eiture of cable television is a condition of supervised rele ase, we wi l l not enter tain a challeng e to it unless it is enfor ced. A t that time, defenda nt may contest it under § 3583( e). III. The judg ment is aff

irm ed

.

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