USA v. Cherralyn Milton-Browner

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-16127
Non-Argument Calendar
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D.C. Docket No. 0:11-cr-60095-JIC-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
CHERRALYN MILTON-BROWNER,
lllllllllllllllllllllllllllllllllllllll lDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(November 14, 2012)
Before TJOFLAT, CARNES and MARTIN, Circuit Judges.
PER CURIAM:
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A jury convicted Cherralyn Milton-Browner of conspiracy to commit mail
fraud, in violation of 18 U.S.C. § 1349, and the District Court sentenced her to
prison for 36 months, a term within the Guidelines sentence range of 30 to 37
months. She appeals her sentence, arguing that the court clearly erred (1) by
denying her a mitigating-role adjustment and (2) by denying her a downward
departure under U.S.S.G. § 5K2.20 and (3) that her sentence is substantively
unreasonable. We affirm.
Milton-Browner was a Deputy Sheriff in the Broward County Sheriff’s
Office assigned to the County’s detention facility. She became romantically
involved with an inmate, Onakia Griffin. After Griffin’s release, Milton-Browner,
Griffin and Sharita Hubbard, Griffin’s cousin, engaged in a scheme to commit
identity theft and credit card fraud. They executed the scheme this way.
Hubbard, using her position as a medical records clerk at Oncology and
Hematology Associates, provided Griffin with the names and personal information
of patients, including their residence addresses. Griffin, armed with that
information, fraudulently obtained credit cards in the patients’ names. So that the
cards would not be mailed to the patients’s addresses, Griffin had the credit card
companies change their addresses to the address for Milton-Browner’s mail box.
Milton-Browner retrieved the cards from her mail box—15 in all—and gave them
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to Griffin. Griffin used the cards to purchase Milton-Browner meals, a cell phone,
a computer and a camera. She also gave Milton-Browner thousands of dollars in
cash she obtained via the cards.
Griffin and Hubbard pled guilty to conspiracy to commit wire fraud, use of a
means of identification of another person, use of one or more unauthorized access
devices, and aggravated identify theft. At sentencing, the District Court held1
Griffin accountable for 32 victims and $153,512 in losses and sentenced her to
prison for 24 months. The court held Hubbard accountable for 15 victims and
$87,109 in losses. Milton-Browner was held accountable for the 15 victims whose
cards were sent to her mail box and $108,733.
I.
Milton-Browner argues that the District Court clearly erred by failing to
apply a mitigating-role adjustment to her offense level under U.S.S.G. § 3B1.2.
She asserts that her role in the overall scheme was minimal or minor, because she
took direction from Griffin, and merely “steered” fraudulently obtained credit
cards that came to her mailbox. She claims that, unlike Griffin, she did not take an
“active part” in the acquisition of the cards, and did not control them once
acquired.
Griffin testified as a prosecution witness at Milton-Browner’s trial.1
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We review the District Court’s finding of Milton-Browner’s role in an
offense for clear error. United States v. Rodriguez De Varon, 175 F.3d 930, 937
(11th Cir. 1999)(en banc). The Guidelines provide for a reduction in offense level
for defendants whose role in the offense was minor or minimal. U.S.S.G. § 3B1.2.
Minimal participants, those who are “plainly among the least culpable of those
involved in the conduct,” may receive a four-level reduction. Id. § 3B1.2,
comment. (n.4). The defendant performs a minimal role where she lacks
knowledge and understanding of the scope and structure of the offensive conduct
and the activities of others involved. Id. Minor participants, those who are “less
culpable than most other participants, but whose role could not be described as
minimal,” may receive a two-level reduction. Id. § 3B1.2, comment. (n.5). The
defendant must prove that a mitigating-role adjustment is merited by a
preponderance of the evidence. De Varon, 175 F.3d at 939.
We consider Milton-Browner’s role in the relevant conduct for which she
was held accountable. Id. at 940-41. The court held Milton-Browner accountable
for the crime of mail fraud, and the loss associated with credit cards that were sent
to her mailbox and delivered by her to Griffin. She facilitated the acquisition and
use of every card. Therefore, she played a significant role in the relevant conduct.
Milton-Browner nonetheless contends that, compared to the overall scheme,
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her role was minor or minimal. Credit cards in the names of 15 victims came to
her mailbox, resulting in a loss of $108,733. She was held accountable for this
loss alone, not for the broader scope of the conspiracy, which involved different
crimes, a greater number of victims, and a greater financial loss. She cannot show
that she is entitled to a role adjustment by pointing to the broader scheme for
which she was not held accountable. Id. at 941. We only consider that she played
an essential role in the relevant conduct that was attributed to her.
While Milton-Browner asserts that she merely took direction from Griffin,
she presented no evidence that she lacked knowledge and understanding of the
scope and structure of the scheme and the activities of the other participants.
U.S.S.G. § 3B1.2, comment. (n.4). She knew how Griffin obtained and used the
credit cards. With this knowledge, Milton-Browner volunteered her mailbox for
use in the scheme and delivered the cards to Griffin.
Milton-Browner argues that she is less culpable than Griffin. The District
Court had the discretion, but was not required, to consider her role as compared to
that of the other participants in the relevant conduct. De Varon, 175 F.3d at 940.
Two others participated in the relevant conduct, Sharita Hubbard and
Onakia Griffin. Hubbard took the personal information of patients of the
Oncology and Hematology Associates and gave it to Griffin. Griffin used the
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information to apply for fraudulent credit cards. Milton-Browner offered her
former mailbox for delivery of the cards. When the cards arrived at her mailbox,
she ensured that they got to Griffin. Griffin used the cards to purchase items for
herself and Milton-Browner. The participation of all three was essential to
carrying out the scheme.
The fact that Milton-Browner had a less significant role than the other
participants does not entitle her to a role adjustment. See id. at 946 (stating that
the fact that the defendant was hired by another person to smuggle heroin into the
United States did not alone entitle her to a role adjustment). She has not shown
that she was “less culpable than most other participants.” U.S.S.G. § 3B1.2,
comment. (n.5). More importantly, she played a significant role in the relevant
conduct for which she was held accountable. De Varon, 175 F.3d at 945. For this
reason, the court did not clearly err by denying her a mitigating-role adjustment.
II.
Milton-Browner argues that the District Court erred by denying her request
for a downward departure under U.S.S.G. § 5K2.20. She asserts that the court’s
denial resulted in an unreasonable sentence that was grossly higher than that of her
more culpable co-conspirators.
We lack jurisdiction to review the district court’s denial of a downward
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departure, unless the court believed that it lacked the authority to depart. United
States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006). The record shows that
the court understood that it had the authority to depart. After considering the
arguments presented at the sentencing hearing, the court explained that a departure
under § 5K2.20 is only available where the defendant committed a single criminal
act, without significant planning, for a limited duration of time. The court found
that Milton-Browner engaged in numerous criminal transactions over a period of
months, and ruled that she was not entitled to a departure.
The district court knew it had the authority to depart, but determined that a
departure was unwarranted. For this reason, we lack jurisdiction to review the
court’s determination. Dudley, 463 F.3d at 1228.
III.
Milton-Browner argues that, based on the 18 U.S.C. § 3553(a) factors, her
36-month sentence is substantively unreasonable. She argues that her sentence is
unreasonable because it is greater than the sentences of her co-conspirators.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591,
169 L.Ed.2d 445 (2007). The party challenging a sentence has the burden to show
that it was unreasonable. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir.
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2007). We reverse only if “left with the definite and firm conviction that the
district court committed a clear error of judgment in weighing the § 3553(a)
factors by arriving at a sentence that lies outside the range of reasonable sentences
dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th
Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1813 (2011) (quotation omitted). The
court commits a clear error where it imposes a sentence that does not achieve the
goals encompassed within § 3553(a). Id. at 1189. These goals include, inter alia,
the need to reflect the seriousness of the offense and to deter criminal conduct. 18
U.S.C. § 3553(a)(2)(A), (B).
Milton-Browner has not shown that her sentence is substantively
unreasonable in light of the record and the § 3553(a) factors. Her sentence is
within the applicable guideline range, and we ordinarily expect such a sentence to
be reasonable. See United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Her sentence, moreover, meets the goals of § 3553(a), particularly the need to
address the seriousness of the offense and to deter future criminal conduct.
We must consider the nature and circumstances of the offense and
Milton-Browner’s history and characteristics in accordance with § 3553(a)(1).
While she served as a detention deputy, Milton-Browner conspired with one of her
former inmates and carried out the conduct in the instant case. For this reason,
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there is a heightened need to deter future criminal conduct. The nature of her
crime is particularly serious because of the lasting impact that identity-theft related
crimes have on victims.
Milton-Browner argues that her sentence is unreasonable because it is
greater than the sentences imposed on Griffin and Hubbard. If we required the
District Court to adjust Milton-Browner’s sentence based on the relative sentences
of her co-conspirators, it would create disparities between her sentence and the
sentences of similarly situated defendants in other cases. See United States v.
Regueiro, 240 F.3d 1321, 1325 (11th Cir. 2001) (“[T]o adjust the sentence of a
co-defendant in order to cure an apparently unjustified disparity between
defendants in an individual case will simply create another, wholly unwarranted
disparity between the defendant receiving the adjustment and all similar offenders
in other cases.”) (quotation omitted).
Further, Milton-Browner has not shown that she and her co-conspirators
were similarly situated. See United States v. Williams, 526 F.3d 1312, 1324 (11th
Cir. 2008) (affirming the district court’s sentence where the defendant had not
shown that a similarly situated defendant received a shorter sentence). Unlike her
co-conspirators, Milton-Browner held a position of authority at a detention center
throughout the scheme. Also unlike her co-conspirators, Milton-Browner did not
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cooperate with the government. For these reasons, she has not shown that the
sentence disparities were unwarranted. See id. (ruling that the disparity between
the sentences of two defendants was warranted because one testified against the
other).
In light of Milton-Browner’s position as a detention deputy, the particular
need to deter future criminal acts under these circumstances, and the seriousness
of her crime, a sentence within the guideline range is reasonable.
AFFIRMED.
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