Submitted: April 14, 2016
from United States District Court for the Northern District
of Iowa - Cedar Rapids
LOKEN, BEAM, and SMITH, Circuit Judges.
Ann Kobriger appeals following the entry of a guilty plea to
a charge of embezzlement by a bank employee in violation of
18 U.S.C. § 656. The district court sentenced
Kobriger to twenty-one months' imprisonment, the bottom
of the suggested United States Sentencing Guidelines range.
Kobriger challenges the length of the imposed sentence on
appeal. We affirm.
worked for Iowa Falls State Bank from November 2004 through
January 2014. From December 2008 to December 2012, Kobriger
was the Client Associate Supervisor (head teller) at the
bank, in charge of all tellers, the bank vault, and ordering
cash for the bank. During her time in this position, Kobriger
embezzled more than $140, 000. The loss was not discovered
until January 2014, when Kobriger was no longer the Client
Associate Supervisor, having been promoted to Vice President,
Retail Manager in 2013. When questioned about the
discrepancy, Kobriger lied and indicated she had likewise
discovered the missing money herself in 2006 but was never
able to find the origin of the discrepancy. During a
one-on-one conversation in Kobriger's home with the bank
president, Kobriger explained that a forensic accountant
would be confused during the impending investigation because
she made fictitious entries to try and fix the problem of the
missing money that she had inherited in her 2006 position.
She therefore denied stealing the money. However, only five
minutes after the president left her home, Kobriger called
him and admitted to stealing the money.
the entry of her guilty plea, Kobriger moved for a downward
variance based on her lack of criminal history, family
commitments and social ties, mental health issues, general
character, and the fact that at the time of sentencing she
had already made good on nearly the entire restitution
amount, as she paid $159, 181.47 of the $181, 393.63
The applicable Guidelines range was twenty- one to
twenty-seven months, with two to five years of supervised
release and a fine of $5, 000 to $1, 000, 000, and total
restitution of $181, 393.63. The district court denied
Kobriger's motion for a downward variance and sentenced
her to twenty-one months' imprisonment followed by five
years of supervised release.
court reviews the imposition of sentences, whether inside or
outside the Guidelines range, under a deferential abuse of
discretion standard. United States v. Jones, 612
F.3d 1040, 1044 (8th Cir. 2010). An abuse of discretion
occurs when: (1) a court fails to consider a relevant factor
that should have received significant weight; (2) a court
gives significant weight to an improper or irrelevant factor;
or (3) a court considers only the appropriate factors but in
weighing them commits a clear error of judgment. United
States v. Farmer, 647 F.3d 1175, 1179 (8th Cir. 2011).
The fact that this court might reasonably have concluded that
a different sentence was better suited is assuredly
insufficient to justify reversal of the district court under
a deferential abuse-of-discretion standard. United States
v. Webster, No. 15-3020, 2016 WL 1637644, *1 (8th Cir.
Apr. 25, 2016). "[I]t will be the unusual case when we
reverse a district court sentence-whether within, above, or
below the applicable Guidelines range-as substantively
unreasonable." United States v. Feemster, 572
F.3d 455, 464 (8th Cir. 2009) (en banc) (quoting United
States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir.
2008)). Too, where the sentence imposed is within the
advisory Guidelines range, this court accords it a
presumption of reasonableness. United States v.
Scales, 735 F.3d 1048, 1052 (8th Cir. 2013).
Kobriger offered the sort of evidence that could
have persuaded the district court to vary downward from
the advisory Guidelines sentence. For example, offering the
character letter from the Iowa Falls State Bank President was
certainly favorable to her, as he was a distinctive,
unorthodox character witness, to be sure. Kobriger offered
evidence to support a conclusion that this crime was out of
character for her and that she had made strides since
committing the crime to straighten her life out, even
obtaining a new job despite her prior transgressions. Too,
she had absolutely no criminal history and had paid
a notable amount of her restitution at the time of
sentencing, which was certainly commendable. However, that
the district court did not vary downward was not an
abuse of its discretion.
appeal, Kobriger primarily highlights two aspects of this
case that she claims should have warranted a downward
variance: the substantial payments she made toward her
restitution, and her lack of any criminal
history. As to her restitution payments, she claims
they demonstrated her good character and illuminated the fact
that she had committed to righting her wrongs. Certainly a
defendant's character, including her commitment to the
community and a positive impact on its members, can properly
form the basis for a motion for downward variance. United
States v. Jefferson, 725 F.3d 829, 834 (8th Cir. 2013).
Here, however, the court did not abuse its discretion in
declining to vary downward on that basis. Kobriger argues
that the district court did not specify the exact amount of
Kobriger's notable payment toward restitution, thus
indicating this factor was "irrelevant" to the
court, or that the court dismissed this evidence "out of
hand, " but this is not so. The district court discussed
the issue, confirmed with the parties that they stipulated to
the amount of the two payments totaling $159, 181.47, and did
not abuse its discretion in failing to vary downward on that
basis. Kobriger additionally argues that her large payment
toward restitution greatly exceeded payments made by other,
unrelated defendants in prior sentencings on similar offenses
and should thus have weighed more heavily with this district
court, an argument wholly without support in case law. The
district court discussed the arguments raised by Kobriger at
sentencing and determined that her payments toward
restitution did not support a lower-than-Guidelines sentence.
The court did not abuse its discretion in doing so.
lack of criminal history also does not support a reversal in
this case. Kobriger argues that the district court
procedurally erred by failing to adequately consider this
factor. She claims the district court actually turned a
positive into a negative on this issue by noting that
Kobriger's lack of criminal history assisted her in
carrying out her crime because she would not otherwise have
even been able to work at the bank had she had a
criminal history. Kobriger claims that in viewing her lack of
criminal history as a negative, the district court
erroneously disregarded that factor entirely in its 18 U.S.C.
§ 3553(a) analysis. Kobriger also takes issue with the
government's comment at sentencing that because she
carried out the embezzlement for four years, that
was like a criminal history in itself. Despite this
panel's similar concerns regarding the government's
comments at sentencing, there is no evidence that the
district court adopted that reasoning, nor was in any way
persuaded by the government's comment. In the sentencing
colloquy, the district court appropriately considered
Kobriger's lack of criminal history and concluded that
given the nature of the crime, her "lack of criminal
record [did not] sway [the court] one way or another."
There is sufficient indication from the colloquy that the
district court adequately considered the factor, did not
procedurally err, and did not abuse its discretion in failing
to vary downward on this basis.
viewing Kobriger's exhibits and considering her arguments
in light of the § 3553(a) factors, the court concluded
that the nature and circumstances of Kobriger's offense
gave insight into her character, namely that she endeared
herself to her co-workers and employers, established trust
with them, stole from them for four years, attempted to hide
the embezzlement, and then denied that it occurred. On review
of the sentencing colloquy, we have no basis to conclude this
was an abuse of discretion.