United States of America v. Reva Plunkett

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-2793
___________________________
United States of America
Plaintiff - Appellee
v.
Reva Plunkett
Defendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota - Northern
____________
Submitted: April 12, 2024
Filed: June 13, 2024
[Unpublished]
____________
Before COLLOTON, Chief Judge, SMITH and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Reva Plunkett pled guilty to wire fraud, in violation of 18 U.S.C. § 1343.
While the Presentence Investigation Report (PSR) calculated the United States
Sentencing Guidelines (USSG) range as 33 to 41 months’ imprisonment, after the

-- 1 of 8 --

-2-
district court1 departed upward from criminal history Category I to Category VI,
Plunkett’s adjusted Guidelines range was 92 to 115 months’ imprisonment. The
district court imposed a 94-month sentence, and Plunkett appeals, alleging
procedural errors and that her sentence was substantively unreasonable. Having
jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
Plunkett was the bookkeeper for her in-laws’ businesses. Her duties included
managing and reconciling business accounts and writing checks for business
expenses like payroll and vendor payments. From 2015 to 2022, Plunkett embezzled
over $686,000 via numerous checks that she wrote to herself. She disguised these
payments in the businesses’ accounting systems by recording them as checks
payable to vendors for legitimate expenses. After another employee found several
check stubs without matching invoices and notified the owners, an internal
investigation revealed Plunkett’s scheme. When Plunkett was later interviewed by
law enforcement, she admitted to stealing the money but explained that she did so
because of financial troubles associated with her children’s increasing medical bills.
Plunkett was charged with 13 counts of wire fraud but pled guilty to one count
pursuant to her plea agreement in exchange for dismissal of the remaining counts.
Before sentencing, the district court notified the parties of its intent to depart upward
based on its belief that the Category I criminal history score reflected in the PSR
severely understated Plunkett’s crimes, in part because it viewed each fraudulent
check as a separate instance of wire fraud. The district court noted that Plunkett “has
been dishonest and committing one crime after another for at least 10, probably 14,
years,” and her criminal history category was properly Category VI because “[s]he
is, in fact, off the chart.” Plunkett did not object to the district court’s
1 The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

-- 2 of 8 --

-3-
characterization of the duration of her conduct, and it was never mentioned during
the sentencing hearing.
Near the beginning of the sentencing hearing, the district court asked the
Government whether Plunkett had paid any income taxes on the money she had
stolen or whether the Government had investigated the tax consequences of
Plunkett’s actions. The Government explained that it did not pursue any sort of tax
offense in the case, and it took no steps to obtain her tax records. The hearing
continued, but when the district court later began to explain and pronounce
Plunkett’s sentence, it reiterated its concern about the possible tax implications.
Specifically, the district court stated, “I am as sure as I can be that no income tax
was ever paid on this money that was stolen.” Noting the evidence that Plunkett
altered inventory records for the businesses, the district court explained that
“[h]igher inventory means that the business is going to pay less in income taxes.”
The district court concluded that it was satisfied by a preponderance of the evidence
that Plunkett had committed tax fraud because “[a]lmost nobody reports stolen
money as income and pays income tax on it,” despite stating that it “realize[d] there’s
probably no definite evidence of income tax fraud here.” Plunkett did not object to
any of these comments.
After the upward departure from criminal history Category I to VI, Plunkett’s
Guidelines sentencing range increased from 33 to 41 months’ imprisonment to 92 to
115 months’ imprisonment. The district court sentenced Plunkett to 94 months’
imprisonment and 3 years of supervised release. After imposing the sentence, the
district court also found that, while there had been 13 different embezzlements
charged in the indictment, “there’s hundreds more.” Plunkett objected to this
comment, which the district court swiftly overruled.
II.
“When we review the imposition of sentences, whether inside or outside the
Guidelines range, we apply a deferential abuse-of-discretion standard.” United

-- 3 of 8 --

-4-
States v. Jones, 89 F.4th 681, 684 (8th Cir. 2023) (citation omitted). We employ a
two-step review: “first we review for significant procedural error; and second, if
there is no significant procedural error, we review for substantive reasonableness.”
Id. (citation omitted).
A.
We first address Plunkett’s claims of procedural error. She argues that the
district court procedurally erred by (1) departing upward from criminal history
Category I to VI without adequate explanation and (2) relying on several allegedly
clearly erroneous factual findings.
1.
Failing to adequately explain an upward criminal history departure is a
significant procedural error. See United States v. Ortiz, 636 F.3d 389, 394 (8th Cir.
2011). USSG § 4A1.3 “permits an upward departure if ‘reliable information
indicates that the defendant’s criminal history category substantially
under-represents the seriousness of the defendant’s criminal history or the likelihood
that the defendant will commit other crimes.” United States v. Azure, 536 F.3d 922,
930 (8th Cir. 2008) (citation omitted). A district court seeking to impose an upward
criminal history departure under § 4A1.3 must “compar[e] the defendant’s criminal
history with the criminal histories of other offenders in each higher category.” Id. at
931 (citation omitted). While this does not demand a “ritualistic exercise” of
“discuss[ing] each criminal history category it rejects en route to the category that it
selects,” the district court must “‘adequately explain[]’ why it concludes the
intermediary categories fail to meet the purposes of § 4A1.3.” Id. (alteration in
original) (citations omitted). This explanation is especially important where “the
upward departure takes the defendant from the lowest to the highest criminal history
category.” Id. at 932. However, any error in a district court’s failure to adequately
explain the departure is harmless if the district court would have imposed the same
sentence as a variance anyway based on the 18 U.S.C. § 3553(a) factors. See Ortiz,

-- 4 of 8 --

-5-
636 F.3d at 394-95 (finding harmless any procedural error in district court’s failure
to explain each intermediate criminal history category when it departed from
Category II to VI because it would have imposed same sentence as a variance).
Here, the district court gave no particularized explanation for why it rejected
the intermediary categories when it departed upward from category I to VI. It simply
stated that “the criminal history category of the Defendant should be a VI, not a I,
not a II, not a III, not a IV, not a V, but a VI.” Plunkett, specifically invoking our
holding in Azure, objected to the district court’s departure because “there need[ed]
to be more specificity as to why those [intermediary] criminal history categories
d[id] not apply.” The district court overruled the objection. Even if we assume that
the district court’s failure to discuss each criminal history category it rejected was
erroneous, it was harmless because the district court noted that it would have
imposed a 94-month sentence as an upward variance based on its consideration of
the § 3553(a) factors, placing heavy weight on the nature and circumstances of
Plunkett’s offenses. See Ortiz, 636 F.3d at 394-95; 18 U.S.C. § 3553(a)(1). The
district court noted that “this case [was] off the map,” that it had “never seen or heard
any case like this,” and that Plunkett’s crimes were “so callous and so outrageous.”
The district court also noted the need to provide punishment for Plunkett’s
embezzlements, “every one a separate crime,” and found “it difficult here to see any
basis for mercy,” emphasizing that the victims were family members. See 18 U.S.C.
§ 3553(a)(2)(A). On this record, “the district court would have imposed the same
sentence, and for the same reasons, regardless of any procedural error it may have
made in failing to discuss the intermediate criminal history categories.” Ortiz, 636
F.3d at 395.
2.
We next address Plunkett’s argument that the district court procedurally erred
by basing the sentence on several unsupported factual findings. A district court
commits significant procedural error when it relies on clearly erroneous factual
findings in selecting a sentence. United States v. Feemster, 572 F.3d 455, 461 (8th

-- 5 of 8 --

-6-
Cir. 2009) (en banc); see also United States v. Harrell, 982 F.3d 1137, 1140 (8th Cir.
2020) (“In selecting a sentence, a district court may rely on undisputed factual
allegations in the [PSR], reliable evidence introduced by the parties, and, to some
extent, its own judicial experience. However, sentencing courts may not engage in
speculation or draw inferences unsupported by the record.” (citations omitted)). But
significant procedural error is harmless “if we are convinced that the error did not
affect the district court’s sentencing conclusion.” United States v. Wise, 17 F.4th
785, 789 (8th Cir. 2021) (finding harmless any procedural error in district court’s
comment about presence of fentanyl because, despite remark being unsupported by
the record, sentence would have been the same without the comment based on
district court’s discussion of defendant’s extensive criminal history and
circumstances of offense). Accordingly, “[w]hen a district court relies on
speculation or facts not in the record, we consider whether such reliance was a
‘principal basis’ for the sentence.” Harrell, 982 F.3d at 1140 (citation omitted). And
when a defendant does not object before the district court, we review for plain error,
which, in addition to showing that the finding was plainly erroneous, requires the
defendant to show a “reasonable probability that [she] would have received a lighter
sentence but for the error[s].” United States v. Stokes, 750 F.3d 767, 771 (8th Cir.
2014) (citation omitted).
Plunkett points to three remarks that were allegedly unsupported by the record
but on which, she asserts, the district court based the sentence: (1) the district court’s
comment in its presentencing notice of its intent to depart upward that Plunkett had
been committing these crimes for “at least 10, probably 14, years”; (2) its finding
that Plunkett likely committed tax fraud; and (3) its comment that Plunkett had
written herself hundreds of checks over the course of her criminal scheme. Plunkett
only objected to the third comment, so we review the other two for plain error. See
id.
Even assuming that the first two remarks by the district court were plainly
erroneous, on this record, we cannot say that Plunkett has met her burden of showing
a reasonable probability of a lighter sentence. See Harrell, 982 F.3d at 1140 (finding

-- 6 of 8 --

-7-
no plain error in district court’s comments about the uptick in gun violence in a
particular neighborhood and “that people would avoid [defendant] if they knew his
criminal history” because comments were not principal basis and reliance on other
aggravating factors showed no reasonable probability of lighter sentence). The
district court extensively explained the callous nature of Plunkett’s crimes, and
Judge Kornmann noted that Plunkett’s scheme was “by far the most outrageous
financial fraud case” he had seen in his 28 years of experience. The district court
contrasted this case with other embezzlement cases it had presided over involving
hospitals or banks but explained that what made this case even more outrageous was
that Plunkett was stealing money from her family. Moreover, the district court
emphasized that Plunkett “tried to frustrate efforts by the victims to find out what
had happened” by, for example, refusing to give them certain accounting passwords,
and that Plunkett had no plan to pay back the money. This demonstrates that the
comments were not the principal basis for the sentence.
For these same reasons, we find that the comment that Plunkett did object
to—the district court’s finding that Plunkett wrote hundreds of checks to
herself—was not the principal basis for the sentence. See United States v. Eagle
Pipe, 911 F.3d 1245, 1248 (8th Cir. 2019) (concluding that district court’s
unsupported findings, such as speculating that defendant likely committed other acts
of domestic violence because such crimes often go unreported and “fail[ing]
to . . . resolv[e] confusion in the record whether [the defendant] ha[d] 69, 100, or
101 prior tribal convictions,” were not principal basis for sentence, and therefore
finding no plain error). Thus, the district court did not commit procedural error in
imposing Plunkett’s sentence.
B.
Plunkett also challenges the substantive reasonableness of her sentence,
arguing that the district court gave too much weight to aggravating factors and not
enough weight to mitigating factors, notably, her children’s heaping medical bills
that motivated her crimes and her decision to enter a guilty plea early in the case.

-- 7 of 8 --

-8-
“A district court abuses its discretion when it ‘fails to consider a relevant and
significant factor, gives significant weight to an irrelevant or improper factor, or
considers the appropriate factors but commits a clear error of judgment in weighing
those factors.’” United States v. Holmes, 87 F.4th 910, 916 (8th Cir. 2023) (citation
omitted).
But “[a] district court has wide latitude in weighing relevant factors, including
discretion to assign more weight to the offense’s nature and circumstances than to
the defendant’s ‘mitigating personal characteristics.’” United States v. Anderson,
90 F.4th 1226, 1227 (8th Cir. 2024) (citation omitted). The district court did not
abuse its wide latitude when it weighed the circumstances of Plunkett’s fraud—that
she had repeatedly done this to her family, frustrated their recovery efforts, and made
no plans to pay the money back—more heavily than her personal financial troubles.
We therefore find that the district court imposed a substantively reasonable sentence.
III.
For these reasons, we affirm Plunkett’s sentence.
______________________________

-- 8 of 8 --