United States of America v. Timatress Tenaka Cade

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMATRESS TENAKA CADE,
Defendant - Appellant.
No. 21-6008
(D.C. No. 5:17-CR-00256-R-1)
(W.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
_______________________________________
This appeal involves the length of Ms. Timatress Cade’s sentence.
The sentence consisted of two years’ imprisonment for misrepresenting her
Social Security number to obtain goods and services. 42 U.S.C.
§ 408(a)(7)(B). Ms. Cade argues that the sentence was substantively
unreasonable because it was too long. We disagree and affirm the sentence.
* Because oral argument would not materially help us to decide the
appeal, we have decided the appeal based on the record and the parties’
briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
September 29, 2021
Christopher M. Wolpert
Clerk of Court
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Before obtaining this sentence, Ms. Cade had already served a prison
term of one year for this crime. Upon completion of that prison term, Ms.
Cade went on supervised release, which allowed her to stay out of prison
upon certain conditions. These conditions not only prohibited any future
crimes but also required her to pay restitution, notify the probation office
of changes in her living arrangements, comply with drug testing, and
attend treatment for substance abuse. She admittedly failed to comply with
many of these conditions, including the prohibition on criminal activity,
and the court revoked her supervised release.
Upon revocation of supervised release, the court had to impose a new
sentence. To do so, the court considered the statutory sentencing factors.
See 18 U.S.C. § 3553(a). These factors include the need to deter the
defendant and protect the public from further crimes. 18 U.S.C.
§ 3553(a)(2)(B)–(C). The court zeroed in on these factors, focusing on Ms.
Cade’s continued criminality while on supervised release.
The court pointed to two of Ms. Cade’s violations of supervised-
release conditions: (1) continued use of fake identification cards and
(2) theft from a law firm. The court viewed these violations as “stunning”
and “serious[],” calling for “a very serious consequence.” Revocation Hr’g
Tr. at 22–23.
Ms. Cade argues that
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 the violations were “overblown,”
 she was honest with the probation officer about her crimes, and
 the sentence more than doubled the guideline range.
We consider these arguments based on the standard for challenges
involving the substantive reasonableness of the sentence. The overarching
standard is whether the district court abused its discretion. United States v.
Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009).
In our view, the court acted within its discretion. Ms. Cade
downplays her continued thievery after release from prison. Before going
to prison, Ms. Cade had received a settlement check from a law firm. From
the check, she used routing and account numbers to set up automatic
payments to herself from the law firm’s account. She then went to prison to
serve her 12-month prison term. But when she got out, she continued to get
automatic payments from the law firm’s account. The thievery continued
until the law firm discovered what Ms. Cade had done.
From Ms. Cade’s perspective, she had simply forgotten about the
automatic payments. But the district court could reasonably take a harsher
view: Ms. Cade knew that she was continuing to receive payments from her
fraudulent use of the law firm’s account information. The court could
reasonably view Ms. Cade’s continued use of the fraudulent account as an
alarming pattern of criminality even after her release from prison.
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After her release, Ms. Cade didn’t stop using others’ personal
information. For example, she used other individuals’ social security
numbers to open accounts for utility services. Ms. Cade again downplays
the crimes, stating that she used a social security number only two digits
different from her own.
Ms. Cade doesn’t explain the significance of the similarity in the
social security numbers. Perhaps she’s suggesting that she made an
innocent mistake when she used someone else’s social security number.
Regardless of what she’s suggesting, however, the district court could
reasonably view the discrepancy as intentional.
Despite the seriousness of these crimes, Ms. Cade’s guideline range
was only 4–10 months’ imprisonment. The court acted reasonably by using
this range at a starting point and stiffened the sentence because of the
threat of recidivism. See United States v. Steele, 603 F.3d 803, 809 (10th
Cir. 2010) (stating that “recidivism is generally a reason for increased
sentencing severity”).
Given the threat of recidivism, the court doubled the original
sentence, which had been only one year in prison. The new sentence served
the primary purpose of punishing Ms. Cade for breaking the court’s trust
when she violated her supervised-release conditions. United States v. Vigil,
696 F.3d 997, 1003 (10th Cir. 2012). So the court was not constrained by
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its earlier leniency. United States v. Kelley, 359 F.3d 1302, 1306 (10th Cir.
2004).
Ms. Cade insists that she was honest with her probation officer,
admitting new crimes. But this honesty came only after Ms. Cade had been
caught. She breached the court’s trust by committing crimes while on
supervised release. See United States v. Contreras-Martinez, 409 F.3d
1236, 1241 (10th Cir. 2005) (“The violation of a condition of supervised
release is a breach of trust.”).
* * *
Given the continued thievery while on supervised release, the district
court could reasonably conclude that a stiff sentence was necessary for
deterrence and protection of the public. That conclusion might lead
different judges to impose a variety of sentences. Some judges might
reasonably have imposed a more lenient sentence. But this judge didn’t
abuse his discretion by selecting a sentence of two years’ imprisonment.
We thus affirm the sentence.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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