United States v. Catherine A. Hickling, 11th Cir. (2010)
United States v. Catherine A. Hickling, 11th Cir. (2010)
United States v. Catherine A. Hickling, 11th Cir. (2010)
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 2, 2010
JOHN LEY
CLERK
Plaintiff-Appellee,
versus
CATHERINE A. HICKLING,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(July 2, 2010)
Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Catherine A. Hickling appeals her 30-month sentence imposed for wire
fraud. After a thorough review of the record, we affirm in part and vacate and
remand in part.
Hickling was charged with two counts of wire fraud, in violation of 18
U.S.C. 1343, and one count of aggravated identity theft, in violation of 18 U.S.C.
1028A, in connection with a mortgage fraud scheme. She pleaded guilty to a
single count of wire fraud.
The probation officer calculated the sentencing range as follows: Under
U.S.S.G. 2B1.1(a)(1), the base offense level was 7. There was a 6-level increase
based on the amount of loss, 2B1.1(b)(1)(D), and a 2-level increase because the
offense involved sophisticated means, 2B1.1(b)(9)(C). According to the record,
Hickling used multiple false documents to carry out the scheme and moved to
another city to avoid detection. With a 2-level reduction for acceptance of
responsibility, the total offense level was 13. The probation officer determined
Hicklings criminal history category to be III and noted that Hickling had pleaded
guilty to state charges in connection with the mortgage fraud scheme and had been
sentenced to three years confinement. The probation officers calculations yielded
a guideline range of 18 to 24 months imprisonment. The probation officer also
noted that an upward departure may be warranted.
Hickling objected to the enhancement for sophisticated means and to any
suggestion that her conduct warranted an upward departure.
category, it did not make any findings as to whether her criminal history was not
adequately represented or if it was likely that she would commit future crimes.
Accordingly, the district courts lack of findings preclude meaningful appellate
review, and we vacate and remand for re-sentencing in this regard.
II. Adjustment for time served under state sentence
Hickling argues that the district court erred by refusing to adjust her present
federal sentence to reflect the time she had already served under a state court
sentence for related conduct.
We review the imposition of a consecutive sentence for an
abuse-of-discretion. United States v. Covington, 565 F.3d 1336, 1346 (11th Cir.
2009). Under 18 U.S.C. 3584(b), the district court may impose a concurrent or
consecutive sentence, provided that the court has considered the factors set forth
under 3553(a).1 See 18 U.S.C. 3584(b); see also Covington, 565 F.3d at
1346-47. The weight to be accorded any given 3553(a) factor is a matter
committed to the sound discretion of the district court, and we will not substitute
our judgment in weighing the relevant factors. United States v. Amedeo, 487 F.3d
These factors include: (1) the applicable Guideline range; (2) the nature and
circumstances of the offense; (3) the history and characteristics of the defendant; (4) the need for
the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense; (5) the need for adequate deterrence to criminal
conduct; (6) protection of the public from further crimes of the defendant; and (7) the kinds of
sentences available. See 18 U.S.C. 3553(a)(1)-(6).
5
The judgment of the district court is affirmed in part, and vacated and
remanded in part, for further proceedings consistent with this opinion.
AFFIRMED in part; VACATED and REMANDED in part.