United States of America v. Bobbie Lynn Perez, a/k/a Bobbie Lynn Wallace

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4282
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BOBBIE LYNN PEREZ, a/k/a Bobbie Lynn Wallace,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
District Judge. (5:10-cr-00396-FL-1)
Submitted: June 6, 2013 Decided: June 13, 2013
Before MOTZ and GREGORY, Circuit Judges, and Ellen L. HOLLANDER,
United States District Judge for the District of Maryland,
sitting by designation.
Affirmed by unpublished per curiam opinion.
Jane C. Norman, BOND & NORMAN, Washington, D.C., for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Joshua L. Rogers, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Bobbie Lynn Perez pled guilty to one count of mail
fraud, 18 U.S.C.A. § 1341 (West Supp. 2012), and three counts of
wire fraud, 18 U.S.C.A. § 1343 (West Supp. 2012). The district
court varied above the Guidelines range and sentenced Perez to
four years of imprisonment. Perez appeals her sentence,
contending that the district court erred when it failed to give
notice that it intended to impose a sentence above the
Guidelines range, departed upward without adequate
justification, and incorrectly determined the amount of loss,
U.S. Sentencing Guidelines Manual § 2B1.1(b)(1)(C) (2011). For
the reasons explained below, we affirm.1
While Perez was pregnant in early 2010, she agreed to
have her child adopted by three different families, located in
California, New York, and North Carolina. From March to May
2010, Perez requested money for living and medical expenses from
all three families during her pregnancy and all three sent her
money, a total of $11,897. During the same time period, Perez
1 We scheduled argument in this case for May 17, 2013.
However, due to counsel’s illness, argument could not be held.
On May 31, 2013, Perez moved to waive oral argument and to
submit the case on the briefs; the Government does not oppose
the motion. We grant the motion because we conclude that the
facts and legal contentions are adequately presented in the
record and briefs, and that oral argument would not aid the
decisional process.

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spent over $16,000 at a casino in Las Vegas, Nevada. Perez’s
baby was born prematurely in May 2010 and adopted by the couple
from New York, known in this litigation as “TM and SK.” Perez
did not inform the other families that the baby had been born.
She continued to request and receive money from the family in
California.
After Perez’s guilty plea to mail and wire fraud, the
probation officer calculated her advisory Guidelines range as
18-24 months, based on a loss of more than $10,000 but not more
than $30,000. The probation officer also suggested that an
upward departure might be justified because of the emotional
trauma caused to the families that did not adopt Perez’s baby.
See U.S.S.G. § 2B1.1, cmt. n.19(A)(ii) (departure may be
warranted for substantial non-monetary harm). Perez objected to
the inclusion in the loss amount of all the money she received
from the families during her pregnancy, arguing that the couple
who adopted her baby had not suffered any pecuniary harm.
At sentencing, the district court decided that all
three families were victims who suffered pecuniary harm because
all three reported that they would not have sent money to Perez
during her pregnancy had they known that she was offering her
child to others for adoption as well as to them. The court
overruled Perez’s objection and adopted the Guidelines
calculation recommended in the presentence report. The court

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then imposed a variance sentence above the Guidelines range,
explicitly citing the sentencing factors set out in 18 U.S.C.
§ 3553(a) (2006), and describing Perez as a predator from whom
the public needed protection. After pronouncing sentence, the
court added that it could have reached the same sentence by
means of a departure under Application Note 19 because of the
severe non-monetary trauma suffered by the families who did not
adopt Perez’s child, and the court explained how it could have
structured the departure.
We review a sentence for reasonableness under an abuse
of discretion standard, Gall v. United States, 552 U.S. 38, 51
(2007), which requires consideration of both the procedural and
substantive reasonableness of a sentence. Id.; see United
States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
Perez first contends that the district court made a
departure above the Guidelines range, and that it was thus
required to give her reasonable advance notice of its intention
to depart or vary above the Guidelines range, which the district
court failed to do. Such notice is required only when the
sentencing court departs from the Guidelines range. See Burns
v. United States, 501 U.S. 129, 135 (1991). However, when the
sentencing court varies from the Guidelines range, the notice
requirement does not apply. Irizarry v. United States, 553 U.S.
708, 713-14 (2008). Here, the district court specified that it

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was imposing a sentence above the Guidelines range based on its
consideration of the sentencing factors set forth in § 3553(a).
Such a sentence constitutes a variance, not a departure. See
United States v. Rivera-Santana, 668 F.3d 95, 100 n.6 (4th
Cir.), cert. denied, 133 S. Ct. 274 (Oct. 1, 2012). Therefore,
prior notice to Perez was not required. Irizarry, 553 U.S. at
713-14. Perez’s reliance on United States v. Fancher, 513 F.3d
424 (4th Cir. 2008) (holding that notice of possible variance
given in the presentence report is insufficient), is unavailing
because Fancher was abrogated by Irizarry.2
Next, Perez maintains that the district court made a
significant departure without sufficient explanation and without
addressing the mitigating factors she advanced, such as her
difficult early life and her addictions to drugs and alcohol. A
“deferential abuse-of-discretion standard applies to any
sentence, whether inside, just outside, or significantly outside
the Guidelines range.” Rivera-Santana, 668 F.3d at 100-01
(internal citation and quotation marks omitted). In reviewing a
variance, the appellate court must give due deference to the
2 The government contends that Perez did not preserve this
issue because she did not object to a lack of notice in the
district court, and that the issue should thus be reviewed for
plain error. United States v. Olano, 507 U.S. 725, 732 (1993).
We need not decide whether de novo or plain error review is
appropriate because no error occurred and Perez’s claim fails
under both standards of review.

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sentencing court’s decision. United States v. Diosdado-Star,
630 F.3d 359, 366 (4th Cir.), cert. denied, 131 S. Ct. 2946
(2011). The issue was preserved for appeal when Perez “[drew]
arguments from § 3553(a) for a sentence different than the one
ultimately imposed,” which “sufficiently alert[ed] the district
court of its responsibility to render an individualized
explanation addressing those arguments.” Lynn, 592 F.3d at 578.
As noted above, Perez mistakenly characterizes the
variance sentence as a departure. While the court did not give
an extensive “individualized assessment” of the facts on which
it based its decision to depart from the Guidelines and impose a
four-year sentence, see Lynn, 592 F.3d at 576, the court did
state that Perez was a predator from whom the public needed to
be protected. The court also noted that Perez’s conduct had
caused significant emotional trauma to two of the three
families. The implied finding was that these factors outweighed
the mitigating factors Perez presented. Moreover, the district
court explicitly stated that it found “a sentence of four years
is the one that accomplishes the purposes of sentencing. That’s
a sentence that’s sufficient, but not greater than necesssary.”
Further, the district court stated that it could have
alternatively entered the same sentence by departing upward from
the Guidelines. As the PSR and the court noted, Application
Note 19(A) to § 2B1.1 states that “[t]here may be cases in which

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the offense level determined under this guideline substantially
understates the seriousness of the offense” in which case, “an
upward departure may be warranted.” Application Note 19(A)(ii)
specifically provides that in determining whether an upward
departure is warranted, the court may consider whether “[t]he
offense caused or risked substantial non-monetary harm” such as
“severe emotional harm.” U.S.S.G. § 2B1.1, App. n.19(A)(ii).
The district court found that Perez’s offense caused
“substantial nonmonetary harm” in that “[a]t least two of the
three families expecting to adopt [the] child suffered
significant emotional trauma.” As a result, the court
“discount[ed] the suitability of the [sentencing] range” for
offense levels 11 through 17 “as not capturing the harm” Perez
caused, and concluded that a total offense level of 18 yielded a
sentencing range that suitably captured the harm. Thus, the
court’s explanation for its sentence was adequate.
Last, Perez contends that the district court erred in
finding that the family who adopted her child, TM and SK,
suffered a loss under U.S.S.G. § 2B1.1(b)(1)(C). Had the court
found otherwise and excluded from the loss amount the money TM
and SK sent to Perez, the loss amount would have been reduced to
$7,043. As a result, Perez’s base offense level would have been
reduced by two levels, and her Guidelines range would have been
reduced from 18-24 months to 12-18 months. The district court’s

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calculation of the loss amount attributable to a defendant is a
factual determination reviewed for clear error. See United
States v. Mehta, 594 F.3d 277, 281 (4th Cir. 2010).
Enhancements under § 2B1.1(b) are determined by the
amount of loss resulting from the fraud. The loss amount is the
greater of the actual loss or the intended loss. U.S.S.G.
§ 2B1.1, cmt. n.3(A). “Actual loss” is defined as “the
reasonably foreseeable pecuniary harm that resulted from the
offense,” and “intended loss” is the pecuniary harm that was
intended from the offense. Id., cmt. n.3(A)(i)-(ii).
Application Note 3(C) to § 2B1.1 provides that the district
court need only make a reasonable estimate of the loss and “the
court’s loss determination is entitled to appropriate
deference.”
The record reflects that during the time Perez
solicited and received money from the three families, she spent
over $16,000 gambling at a Las Vegas casino. The record also
shows that, with respect to at least $8,100 of the money,
including $4,025 from TM and SK, the families sent and Perez
received the wire transfers at the casino. Further, although
Perez asked the families for the money to assist with her living
and pregnancy-related medical expenses, the record contains no
evidence that Perez actually used any of the money for those
purposes. On the basis of the record evidence, the district

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court found that TM and SK, like the other prospective parents,
suffered actual loss because “if they had known that this was
going on they would not have given the defendant money.”
In light of the Sentencing Commission’s direction that
“actual loss” includes “pecuniary harm that the defendant . . .
under the circumstances[] reasonably should have known was a
potential result of the offense,” § 2B1.1, cmt. n.3(A)(iv), we
cannot say that the district court clearly erred in calculating
the loss amount to include the money TM and SK sent to Perez.3
Mehta, 594 F.3d at 281. Moreover, fraud encompasses deceptive
acts which deprive others of “the intangible right to control
the disposition of [their] assets.” United States v. Gray, 405
F.3d 227, 234 (4th Cir. 2005); see also United States v.
Gillion, 704 F.3d 284, 295-96 (4th Cir. 2012) (finding employee,
who concealed his identity to trick his employer into selling
him trailers for use in a competing business, committed fraud by
interfering with his employer’s right to dispose of its
property). Finding no reversible error, we must affirm.
3 The record does not reveal when Perez decided that TM and
SK would actually adopt her baby, and there is nothing in the
record to suggest that Perez intended to keep her baby.
Nonetheless, the loss amount does not change even if the only
reasonable conclusion were that Perez intended to defraud two of
the three families who sent her money while seeking to adopt her
baby, but not all three. For, the loss amount is the greater of
the actual loss or the pecuniary harm that was intended to
result from the offense. U.S.S.G. § 2B1.1, cmt. n.3(A).

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We therefore affirm the sentence imposed by the
district court.
AFFIRMED

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