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United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff - Appellee v. Velma M. WHITE, Defendant - Appellant

No. 18-60426

Decided: April 22, 2019

Before BARKSDALE, ELROD, and HO, Circuit Judges. Carla J. Clark, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Mississippi, Jackson, MS, for Plaintiff - Appellee Jessica Nicole Bourne, Assistant Federal Public Defender, Thomas Creagher Turner, Jr., Esq., Federal Public Defender's Office, Southern District of Mississippi, Jackson, MS, for Defendant - Appellant

Velma M. White pleaded guilty to four counts of using an interstate-communication device in relation to a failed murder-for-hire scheme, in violation of 18 U.S.C. § 1958. She challenges her sentence of 170 months’ imprisonment, claiming it is greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). Along that line, she asserts: the separate charges were all related to a single scheme; her difficult background and drug-use history warranted a lower sentence; and, her boyfriend was the instigator of the plot. White notes she has a good work history and completed a drug-treatment program while in jail.

Although post-Booker, the Sentencing Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If no such procedural error exists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse-of-discretion standard. Id. at 51, 128 S.Ct. 586; United States v. Delgado-Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

As noted, White claims only that her sentence is substantially unreasonable. In that regard, the district court is required to impose a sentence sufficient, but not greater than necessary, to comply with § 3553(a)(2)’s goals. See 18 U.S.C. § 3553(a). And, where, as here, the court imposes a sentence within a properly calculated Guidelines sentencing range, the sentence is entitled to a rebuttable presumption of reasonableness on appeal. United States v. Rashad, 687 F.3d 637, 644 (5th Cir. 2012). “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (citation omitted).

The court considered the mitigating evidence presented by White, but concluded, well-within its discretion, that the evidence supported a finding she actively participated in, and encouraged, the failed murder-for-hire. In short, the court did not abuse its discretion in weighing or balancing the sentencing factors. See id. Accordingly, White fails to rebut the presumptive reasonableness of her within-Guidelines sentence. See Rashad, 687 F.3d at 644.




PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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