Friday, February 08, 2019

Upward Variance Based on Criminal History Upheld

US v. Hoaks, 2018 WL 4238267 (10th Cir. 9/6/18)(unpublished): The court affirms sentence increase to five years from an advisory guideline range of 24-30 months. Defendant defrauded the Postal Service of nearly $62,000 by buying stamps with bad checks. She pled guilty to conspiring with her twin sister to violation 18 USC 371. The PSR noted the "seriousness and continuity" of the defendant's criminal history, which included 18 convictions, of which 13 did not count for various reasons, including age. At sentencing, the defendant described her abuse as a child, her relationship with her son, and her acceptance of responsibility. The sentencing court focused on her criminal history and varied upward. On appeal, the defendant contended the court did not adequately explain its reasons for the upward variance at the hearing or in the statement of reasons. Applying plain error review, because the defendant did not object to the procedure below, the panel finds that the district court's explanation was adequate and she couldn't show prejudice. The sentence was also substantively reasonable in light of the defendant's criminal history.