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Upward departure on sentencing was harmless error

Although the district court was imprecise in whether it was imposing an upward departure or a variance in sentencing a former postmaster for conspiracy to commit wire fraud, the appellate court found any error was harmless because the sentence was not unreasonable and the judge would have imposed it in any event.

Background

Patricia Sullivan served as postmaster in Greenville County, South Carolina. She also operated a publishing company, HYPD Publishing. In March 2009, HYPD published The Struggle of Love, an autobiography by Sharon Johnson. Following the book’s publication, Sullivan and Johnson fabricated an elaborate narrative that filmmaker Tyler Perry had purchased the rights to The Struggle of Love. Claiming to need bridge loans while awaiting a payment of $81 million from Perry’s studio, Sullivan and Johnson targeted family, friends and co-workers for “investments,” promising lucrative returns. In total, the pair fraudulently obtained $385,425 from 33 victims.

In January 2017, Sullivan and Johnson each pleaded guilty to one count of conspiracy to commit wire fraud. The district court calculated each defendant’s advisory guidelines range as between 27 and 33 months’ imprisonment. At a joint sentencing hearing, the district court heard testimony from nine victims, Johnson and Sullivan.

The district court sentenced Johnson to 27 months’ imprisonment and announced that Sullivan’s sentencing would be deferred by 60 days, putting Sullivan “on notice of a potential upward departure” as the court considered whether the guidelines range was “insufficient to satisfy the goals of punishment here.”

On June 16, 2017, the district court sentenced Sullivan to 48 months’ imprisonment. The district court framed this sentence as an “upward departure . . . or alternatively an upward variance.” The district court cited Sullivan’s aggravated role in the conspiracy, lack of remorse and willingness to target family members. The district court further stated that, although it believed it had properly imposed an upward departure, it “would have imposed this same sentence as an alternate variant sentence in light of all of the [§] 3553 factors.”

Analysis

Sullivan first argues that the district court made erroneous factual findings regarding her role in the conspiracy. Although other factfinders may not have concluded that Sullivan played a greater role in the conspiracy than Johnson, the district court’s conclusion that she did is plausible and not clearly erroneous in light of the record as a whole.

Sullivan next challenges the district court’s finding that victims “trusted” Sullivan in part because of her “credentials as a public official,” and that Sullivan used that trust to deceive victims. However the record includes ample support for the district court’s determination that Sullivan exploited the trust victims placed in her as a public official.

Sullivan also faults the district court’s finding that she “showed no remorse for her actions” and even “tried to shift the blame to the victims for their role in seeking financial windfalls by lending her money.” Here, the record supports the district court’s finding that Sullivan did not demonstrate genuine remorse.

Sullivan next argues that the district court committed procedural error by not adequately explaining its sentence. Although the district court was imprecise about whether the upward deviation from the Guidelines advisory range it imposed was a variance or an upward departure, it provided an “individualized rationale” for Sullivan’s sentence. The district court discussed the relevant § 3553(a) factors underlying its sentence and addressed counsel’s objections about whether Sullivan and Johnson were similarly situated defendants. Accordingly, we find the district court’s explanation of its sentence was adequate.

We turn now to Sullivan’s primary argument that the district court imposed an impermissible upward departure. Sullivan contends that the district court predominately framed the sentence as an upward departure and weighed two factors prohibited for consideration in imposing upward departures under U.S.S.G. § 5K2.0, namely Sullivan’s aggravated role in the conspiracy and lack of remorse. Sullivan argues that this error warrants reversal of her sentence. We disagree.

To be sure, the district court was “imprecise” about whether it was imposing an upward departure or a variance. Moreover, to the extent that the district court framed Sullivan’s sentence as an “upward departure,” its consideration of Sullivan’s aggravated role in the conspiracy and lack of remorse was improper. However, rather than “wading into the morass” of whether the district court’s imprecision affirmatively constituted error, “we may simply assume that an error occurred because the alleged error is harmless.”

Under an “assumed error harmlessness inquiry,” we affirm a district court’s allegedly erroneous sentence if (1) the district court made clear that it “would have reached the same result even if” it had not made the alleged error and (2) the “sentence would be reasonable” absent the alleged error. Here, the district court’s sentence satisfies both prongs.

Affirmed.

United States v. Sullivan, Appeal No. 17-4457, Dec. 6, 2018. 4th Cir. (per curiam), from D.S.C. at Greenville (Hendricks). Jeffrey Mikell Johnson for Appellant, William J. Watkins Jr. for Appellee. VLW No. 018-2-227, 17 pp.

VLW 018-2-227

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