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United States v. Cole

United States Court of Appeals, Eighth Circuit

August 29, 2014

United States of America, Plaintiff - Appellant
v.
Abby Rae Cole, Defendant - Appellee

Submitted June 3, 2014

Appeal from United States District Court for the District of Minnesota - St. Paul.

For United States of America, Plaintiff - Appellant: William J. Otteson, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Minnesota, Minneapolis, MN; Michael L. Cheever, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Minnesota, Minneapolis, MN; James Lackner, U.S. ATTORNEY'S OFFICE, Saint Paul, MN.

Abby Rae Cole, Defendant - Appellee, Pro Se, Deerfield, IL.

For Abby Rae Cole, Defendant - Appellee: Lauren Weil Solomon, Highland Park, IL.

Before MURPHY, BYE, and SHEPHERD, Circuit Judges.

OPINION

Page 885

SHEPHERD, Circuit Judge.

A jury found Abby Rae Cole guilty of conspiracy to commit mail and wire fraud, tax evasion, and conspiracy to commit tax fraud. The district court[1] sentenced Cole to three years probation, a downward variance from the advisory Guidelines range of 135 to 168 months imprisonment. The government appealed the sentence as substantively unreasonable, and Cole cross-appealed her convictions. We affirmed the convictions but declined to reach the issue of whether the sentence is substantively unreasonable, finding procedural error in the lack of an adequate explanation by the district court for the sentence and the substantial downward variance. We remanded the case to afford the district court a chance to supply an adequate explanation. United States v. Cole, 721 F.3d 1016, 1025 (8th Cir. 2013).

In our previous opinion, we noted that before reaching the substantive reasonableness of a sentence " '[w]e must first ensure that the district court committed no significant procedural error,'" such as " failing to adequately explain the chosen sentence--including an explanation for any deviation from the Guidelines range." Id. (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). We noted that Cole and her co-conspirators' convictions were based on the theft of approximately $33 million from Best Buy over a four-year period and the evasion of over $3 million in taxes, Cole's sentencing Guidelines range was 135 to 168 months imprisonment, and Cole's co-conspirators, her husband and a Best Buy employee, received sentences of 180 and 90 months respectively. Despite these facts, the district court provided scant explanation for the profound downward variance to a sentence of probation. That scant explanation consisted of the following statements by the district court following pronouncement of the sentence:

The Court has reviewed the case law from the United States Supreme Court and also the Eighth Circuit Court of Appeals dealing with sentencing. The Court is well aware and will use the factors under Title 18 Section 3553, and will vary in this matter . . .
It would be a travesty of justice if I sent you away for a long period of time. I am taking a huge chance on you . . . .

We remanded the case to provide the district court an opportunity to adequately explain " the defendant-specific facts and policy decisions upon which it relied in determining that the probationary sentence is 'sufficient, but not greater than necessary,' to achieve the sentencing objectives set forth in section 3553(a)," Cole, 721 F.3d at 1025 (citation omitted), in an effort to serve the twin goals of " meaningful appellate review and . . . the perception of fair sentencing." Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

On remand, the district court received additional briefing from the parties, conducted a hearing in which it heard additional argument with respect to ...


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