Appeal from the United States District Court for the District of South Dakota.
The opinion of the court was delivered by: Wollman, Circuit Judge.
Submitted: March 17, 2011
Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
Ladarana Mees pleaded guilty to theft concerning programs receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(A), and was sentenced to the statutory maximum of 120 months' imprisonment. Mees appeals his sentence, asserting that the district court*fn1 committed procedural error when it departed upwards from the advisory U.S. Sentencing Guidelines range and when it considered ethnicity and other improper factors during sentencing. Mees also argues that the sentence is substantively unreasonable. We affirm.
From 1993 until 2009, Mees was the finance officer for the Standing Rock Housing Authority (Housing Authority) of the Standing Rock Sioux Tribe. The Housing Authority receives federal funding to help low-income Native American families obtain housing by building new homes and renovating existing homes. Mees began embezzling funds in 2003 by writing checks from the Housing Authority to individuals and businesses under the guise of purchasing air purifiers, heaters, water purifiers, and filters. Some of these items were purchased at significantly inflated prices, while others never existed or were never received. The individuals and businesses would send part or all of the money to Mees's mother or a business that he controlled. The Housing Authority suffered a total loss of $1,418,936 because of Mees's scheme. In October 2009, Mees was indicted with nine counts of theft concerning programs receiving federal funds, in violation of § 666(a)(1)(A), and ten counts of money laundering, in violation of § 1956(a)(1)(B)(i).
Mees pleaded guilty to count one, a theft concerning federal funds in the amount of $19,650.00, and the remaining counts were dismissed. Prior to sentencing, a presentence investigation report (PSR) was prepared that set forth Mees's criminal history, which included only one speeding ticket that was paid in 1999. The PSR determined that Mees had no criminal history points, a criminal history category of I, and an adjusted offense level of 27, resulting in an advisory Guidelines range of 70 to 87 months' imprisonment.*fn2
Before sentencing, the district court notified the parties that it was considering "a very substantial upward departure" to a criminal history category of IV or higher because the criminal history category assigned to Mees "seriously misrepresents his past criminal activity." The district judge stated that this was the "most outrageous" embezzlement case he had seen in his fifteen years as a federal judge.
At sentencing, Wilbur Red Tomahawk-a member of the Standing Rock Sioux Tribe and the Housing Authority's newly-hired executive director-testified that the amount embezzled could have funded the construction of fifteen new homes or the renovation of thirty to forty existing homes. The funds, he asserted, would have assisted 490 families who were waiting for housing assistance and who constituted the "poorest of the poor." Sentencing Tr. at 8. He requested that the district court seek full restitution from Mees. The government and Mees both requested a sentence within the advisory Guidelines range of 70 to 87 months' imprisonment.
Describing the offense, the district court noted that Mees had developed a "very clever scheme" involving his own mother and that he had committed "a very calculated, cold hearted scheme to defraud people who had trust[ed] in [him]." Id. at 25-26. The district court acknowledged that it was limited to seeking restitution for the one count that Mees had pleaded guilty to, $19,650. After reciting the advisory Guidelines range, the district court stated that it found that an upward departure was appropriate and that Mees's criminal history category should be IV instead of I, explaining that "[a] criminal history category of I, II, or III would not represent the actual criminal history of this defendant. He is a big time crook and has been such for many years." Id. at 27. It also found "that a lower criminal history category would substantially under-represent the actual criminal history of this defendant. His criminal activities have been widespread and extensive." Id. at 28. It determined that Mees's criminal history also included his failure to pay income tax on the embezzled funds and reasoned that each time Mees stole money should be construed as a separate criminal act because it was "as though he walked into the bank virtually every day and committed a bank robbery." Id. at 27. Applying a criminal history category of IV, the district court determined that the new advisory range was 100 to 125 months' imprisonment and noted that the statutory maximum was 120 months. It then sentenced Mees to 120 months' imprisonment, three years of supervised release, and ordered him to pay restitution of $19,650 and a $100 special assessment.
A. Significant Procedural Error
We review the imposition of sentences by applying a deferential abuse-of-discretion standard. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). We first ensure that the district court did not commit a significant procedural error. Id. Procedural error includes "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, ...