United States of America v. Kayline Joy LaBelle

United States Court of Appeals
For the Eighth Circuit
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No. 24-1041
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United States of America
Plaintiff - Appellee
v.
Kayline Joy LaBelle
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Northern
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Submitted: December 16, 2024
Filed: April 14, 2025
[Unpublished]
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Before SMITH, GRUENDER, and STRAS, Circuit Judges.
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PER CURIAM.
Kayline Joy LaBelle pleaded guilty to one count of embezzlement and theft
from an Indian tribal organization on an aiding and abetting theory. See 18 U.S.C.
§§ 2 and 1163. The district court1 sentenced LaBelle to the statutory maximum of
1 The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

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60 months. The court reached its sentence by applying an aggravating role
enhancement under U.S.S.G. § 3B1.1. The court also departed above the United
States Sentencing Guidelines range in light of her underrepresented criminal history.
On appeal, LaBelle contends that the district court procedurally erred in applying
§ 3B1.1 and in departing upward. Moreover, she argues that her 60-month sentence
was substantively unreasonable. We affirm.
I. Background2
LaBelle served as the elected treasurer for the Buffalo Lake District of the
Sisseton-Wahpeton Oyate Sioux Reservation (District). During her tenure as
treasurer, LaBelle wrote and cashed 492 checks for amounts exceeding her
authorized stipends, ultimately embezzling over $203,000 from the District. Near
the end of her tenure in 2022, LaBelle wrote multiple unauthorized checks to several
of her siblings and at least one friend. In total, of the $203,283 embezzled, $182,946
went directly to LaBelle. In 2022, the District suspended the banking account based
on LaBelle’s suspicious financial activities. After the account was closed and
LaBelle had resigned, LaBelle continued to write more checks and several of
LaBelle’s siblings attempted to cash several checks associated with that closed
account.
A federal grand jury indicted LaBelle with five counts of embezzlement and
theft from an Indian tribal organization, one on an aiding and abetting theory. See
18 U.S.C. §§ 2 and 1163. Pursuant to a plea agreement, LaBelle pleaded guilty to
one count of embezzlement and theft from an Indian tribal organization for the
conduct that took place between January 2018 and December 2022. In her plea
agreement, LaBelle waived her right to appeal her sentence. The plea waiver,
however, permitted the appeal of “any decision by the Court to depart upward
pursuant to the sentencing [G]uidelines as well as the length of her sentence for a
determination of its substantive reasonableness should the Court impose an upward
departure or an upward variance pursuant to 18 U.S.C. § 3553(a).” R. Doc. 46, at 7.
2 LaBelle’s motion to supplement is denied.

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The final presentence report (PSR) assigned a base offense level of 6 under
U.S.S.G. § 2Bl.l. The base offense level was enhanced by 10 levels for a loss greater
than $150,000 but less than $250,000 under U.S.S.G. § 2Bl.l and was enhanced by
2 levels for abuse of a position of trust under U.S.S.G. § 3Bl.3. At sentencing, the
government objected to the PSR’s failure to include a 4-level enhancement for being
an organizer or leader under U.S.S.G. § 3Bl.l(a). Defense counsel opposed the
government’s objection and disputed the applicability of the role enhancement. After
receiving the 3-level reduction for acceptance of responsibility, LaBelle’s total
offense level was 19. LaBelle had no criminal history points. The PSR thus
calculated her Guidelines range to be 30–37 months.
The PSR did not include a recommendation to depart from the advisory
Guidelines range. The district court, however, filed a memorandum prior to the
sentencing hearing notifying the parties that it intended to consider an upward
departure or upward variance to compensate for LaBelle’s underrepresented
criminal history.
At sentencing, the district court heard arguments from both sides regarding
application of the leader or organizer role enhancement. Ultimately, the district court
reasoned that “[t]he co-defendants in this case would not have received one dime but
for the actions of . . . LaBelle.” R. Doc. 139, at 23. In other words, “[s]he had the
checks. She had the checkbook.” Id. at 24. Therefore, “[s]he facilitated criminal
actions by her siblings and her friend.” Id. The district court overruled the defense
counsel’s objection and applied the enhancement.
During the government’s sentencing statement, the district court inquired
about the five-year statute of limitation and whether there was “culpable conduct
that existed before 2018” that the government was aware of. Id. at 6. The government
responded that it did not know and it was only aware of the “significant conduct for
the time frame charged.” Id. Defense counsel stated that the criminal conduct started
back in 2018. The district court, once again, mentioned the five-year statute of
limitations. Defense counsel replied that discovery had not revealed any improper

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conduct before 2018. The district court acknowledged that the relevant conduct
started in January 2018. During its consideration of defense counsel’s request for a
downward variance, the district court stated:
COURT: She was the treasurer from—prior to 2018. As I stated
previously, the Government cannot do anything about what happened
before 2018. I don’t know what happened. And the Government doesn’t
either because the statute of limitations wouldn’t run on that for five
years, they can’t go back that long. So whatever she was doing before
that date, we have no idea. One would suspect that she was doing the
same thing beforehand that she did year in and year out, day in and day
out, month in and month out starting in January 2018.
So this offense conduct spanned over five years of continuous
embezzlements, involved at least 492 checks when she was only
entitled to 69 monthly stipend checks and one home repair check.
Id. at 25–26.
The district court elaborated on LaBelle’s offense conduct and its seriousness.
It reasoned that LaBelle had “committed hundreds of crimes in her capacity as
treasurer” because in embezzlement cases “every time you write a check, it’s a
crime.” Id. at 24–25. Therefore, the district court found that her “criminal history
category of I substantially underrepresent[ed] her actual criminal history.” Id. at 28.
Additionally, it noted how LaBelle’s statement that “she wasn’t a criminal” during
her allocution ultimately brought “into question . . . whether she ha[d] accepted
responsibility” and demonstrated her “in-your-face attitude.” Id. Moreover, the
district court noted that LaBelle had “not paid one dime of restitution” and the court
doubted her intention to do so in the future. Id. at 25. In consideration of LaBelle’s
mitigation evidence, the district court acknowledged her “terrible marriage” but
found that it did not “amount to anything” because her husband was “deceased and
she’s receiving his money every month.” Id. at 25. Moreover, “[b]eing in an abusive
relationship does not justify crimes of this nature.” Id. at 29.

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The district court acknowledged that it must consider “not only the sentencing
[G]uidelines” but also “all the statutory factors set forth in 18 [U.S.C.] §3553.” Id.
Accordingly, the district court stated that “whether it’s under the [G]uidelines or as
a variance . . . I’m going to go above her [G]uideline[s] range.” Id. Accordingly, the
district court denied LaBelle’s motion for a downward variance and sentenced her
to the statutory maximum of 60 months with a 3-year term of supervised release.
II. Discussion
On appeal, LaBelle argues that the district court procedurally erred by
applying the organizer/leader enhancement under U.S.S.G. § 3B1.1(a) and failing to
adequately explain the reasons for its upward departure/variance from the
Guidelines. Additionally, she argues that her sentence was substantively
unreasonable. We affirm.
A. Procedural Error
“When we review the imposition of sentences, whether inside or outside the
Guidelines range, we apply a deferential abuse-of-discretion standard.” United
States v. Kistler, 70 F.4th 450, 452 (8th Cir. 2023) (quoting United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). “We review a district court’s
sentence in two steps: first, we review for significant procedural error; and second,
if there is no significant procedural error, we review for substantive reasonableness.”
Id. (quoting United States v. O’Connor, 567 F.3d 395, 397 (8th Cir. 2009)).
Procedural errors include “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.”
United States v. Godfrey, 863 F.3d 1088, 1094–95 (8th Cir. 2017) (quoting
Feemster, 572 F.3d at 461).

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LaBelle contends that the district court erroneously imposed the leadership
enhancement without sufficient evidence in the record to support it and did not
adequately explain its reasoning for the upward departure from the Guidelines range.
1. Sentence Enhancement under U.S.S.G. § 3B1.1(a)
LaBelle argues that the district court improperly applied an enhancement
under § 3B1.1(a). However, we need not reach the question of whether the district
court abused its discretion in applying the enhancement because LaBelle has waived
the right to challenge this decision on appeal.
“As a general rule, a defendant is allowed to waive appellate rights.” United
States v. Guice, 925 F.3d 990, 992 (8th. Cir. 2019) (quoting United States v. Andis,
333 F.3d 886, 889 (8th Cir. 2003) (en banc)). “When reviewing a purported waiver,
we must confirm that the appeal falls within the scope of the waiver and that both
the waiver and plea agreement were entered into knowingly and voluntarily.” Andis,
333 F.3d at 889–90. “Even when these conditions are met, however, we will not
enforce a waiver whe[n] to do so would result in a miscarriage of justice.” Id. at 890.
The plain language of LaBelle’s plea agreement waived her “right to appeal
any non-jurisdictional issues.” R. Doc. 46, at 7. LaBelle’s appeal of the district
court’s application of the enhancement under § 3B1.1(a) is within the scope of this
waiver. LaBelle’s waiver was knowing and voluntary. LaBelle does not dispute the
voluntariness of her plea on appeal and nothing in the record would lead us to
conclude otherwise. LaBelle’s appeal rights were clearly set forth in her plea
agreement, and the district court explained the scope of those appeal rights at
sentencing. On this record, we are satisfied that LaBelle’s waiver was knowing and
voluntary.
Finally, we conclude that enforcing this waiver would not result in a
miscarriage of justice. On appeal, LaBelle argues that the district court’s application
of the enhancement was not supported by the record. Nevertheless, “misapplication
of the Guidelines does not render the enforcement of an appeal waiver a miscarriage

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of justice.” Guice, 925 F.3d at 993. LaBelle has waived her right to challenge the
sentence enhancement under § 3B1.1(a).
2. Upward Departure
LaBelle also argues that the district court procedurally erred when it imposed
an upward departure based on LaBelle’s underrepresented criminal history.
LaBelle’s appeal waiver expressly excluded this issue from the waiver’s scope.
LaBelle avers that the district court erred departing upward from the
Guidelines range because (1) the court did not possess reliable information
indicating that LaBelle’s criminal history was substantially underrepresented and (2)
the district court did not explain why the intermediary criminal history categories
insufficiently represented LaBelle’s conduct. “[W]e review departures from the
Guideline[s] range under an abuse of discretion standard.” United States v.
Bordeaux, 108 F.4th 702, 704 (8th Cir. 2024).
First, we consider LaBelle’s argument that the district court’s upward
departure was in error. LaBelle contends that the court considered conduct already
reflected in her base offense level and improperly speculated that other
embezzlements occurred outside the statute of limitations.
An upward departure is warranted under the Guidelines 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.” U.S.S.G. § 4A1.3(a)(1). In United
States v. Mees, we held that the sentencing court did not plainly err in finding the
defendant’s criminal history to be substantially underrepresented when he was
charged with one count of theft for $20,000 of federal funds. 640 F.3d 849, 855 (8th
Cir. 2011). His PSR, however, detailed a five-year embezzlement scheme totaling
over $1.4 million. Id. at 854. The sentencing court reasoned that each time the
defendant stole money “should be construed as a separate criminal act.” Id. at 853.
Consequently, his “one charge for theft . . . did not encompass all of [the defendant’s]

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criminal conduct that occurred during the five-year embezzlement scheme.” Id. at
854.
Similarly, LaBelle’s criminal conduct over the nearly five-year period was not
completely encompassed in the one-count of embezzlement and theft from an Indian
tribal organization. Here, as in Mees, the district court reasoned that each check
written by LaBelle over the relevant period was a separate crime, and therefore,
LaBelle had “committed hundreds of crimes in her capacity as treasurer.” R. Doc.
139, at 24–25. The PSR detailed the total amount of funds embezzled by LaBelle
over the nearly five-year period within the statute of limitations, including 492
checks. LaBelle did not dispute these facts as outlined in the PSR.
Moreover, the district court did not abuse its discretion by considering this
conduct to both increase LaBelle’s offense level and to upwardly depart to a criminal
history category of IV. Under our precedent, the “conduct that has been used to
establish the offense level” may also be used to “assess the need for an upward
departure.” Mees, 640 F.2d at 855 (quoting United States v. Thornberg, 326 F.3d
1023, 1027 (8th Cir. 2003)). Therefore, the district court possessed reliable
information in the PSR that indicated LaBelle’s criminal history category
substantially underrepresented the seriousness of her criminal history, and the court
was entitled to consider that conduct in departing upward.
LaBelle also argues that the court improperly relied upon speculation
concerning possible embezzlement occurring outside the statute of limitations.
LaBelle points to the court’s references to the five-year statute of limitations and its
statement that “[o]ne would suspect that she was doing the same thing beforehand
that she did year in and year out . . . starting in January of 2018.” R. Doc. 139, at 26.
LaBelle contends that the PSR did not contain any reliable information as to
embezzlement prior to 2018, and therefore, the court procedurally erred by relying
on clearly erroneous facts.

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We are not convinced that the district court improperly relied upon LaBelle’s
possible conduct prior to 2018. Although the district court did question the parties
as to their knowledge of any criminal conduct occurring outside the statute of
limitations, it ultimately acknowledged the actual period of conduct within the
statute and that it “[did not] know what happened” outside that period. Id. at 25. The
district court did not make a finding that this conduct had occurred or express a belief
that the conduct had occurred. Cf. United States v. Stokes, 750 F.3d 767, 772 (8th
Cir. 2014) (holding that the district court’s reliance on its finding that the defendant
was “probably” selling drugs during his period of employment was a clearly
erroneous factual finding when the PSR did not contain any evidence of drug dealing
and defendant was only convicted of drug possession).
LaBelle also argues that the district court procedurally erred by sentencing her
to the equivalent of criminal history category IV. She contends that it did not explain
the insufficiency of the intermediary criminal history categories.
“To impose an upward departure under § 4A1.3, the sentencing court must
first proceed along the criminal history axis of the sentencing matrix, comparing the
defendant’s criminal history with the criminal histories of other offenders in each
higher category.” United States v. Azure, 536 F.3d 922, 931 (8th Cir. 2008) (quoting
United States v. Collins, 104 F.3d 143, 145 (8th Cir. 1997)). However, “[t]his
process does not ‘require a ritualistic exercise in which the sentencing court
mechanically discusses each criminal history category it rejects en route to the
category that it selects.’” Id. (quoting United States v. Day, 998 F.2d 622, 625 (8th
Cir. 1993)). Nevertheless, “the court must adequately explain why it concludes the
intermediary categories fail to meet the purposes of § 4A1.3.” Id. (cleaned up).
Here, the district court adequately explained its reasoning for departing
upward. The court based its sentence on LaBelle’s nearly five-year scheme of
repetitive, uninterrupted embezzlement of District funds that were not adequately
reflected in LaBelle’s criminal history category I. Viewing each instance of
embezzlement as a separate crime, the district court reasoned that LaBelle had

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“committed hundreds of crimes” that were not represented in her criminal history
and for which she faced no individual charges. R. Doc. 139, at 24. Here, the district
court adequately explained its upward departure noting the number of checks written
and the duration of the conduct. See Mees, 640 F.3d at 855 (finding no error when
district court jumped from criminal history category I to IV “[a]lthough the district
court did not specifically mention that it had considered the criminal histories of
other offenders in each intermediate criminal history category”); see also Collins,
104 F.3d at 145 (affirming district court’s upward departure from criminal history I
to IV when the PSR detailed 16 other crimes that had not been charged even though
the court did not specifically mention that it had considered each intermediate
category).
Moreover, “[w]e have held that any procedural error in granting an upward
departure is harmless when the district court makes it clear that the sentence is also
based on an upward variance under the [§] 3553(a) factors.” Kistler, 70 F.4th at 452
(alteration in original) (quoting United States v. Timberlake, 679 F.3d 1008, 1011
(8th Cir. 2012)).
Here, the district court noted that “whether it’s under the [G]uidelines or as a
variance . . . I’m going to go above her [G]uideline[s] range.” R. Doc. 139, at 29.
After issuing the sentence, the district court responded to a query whether the
sentence was a variance or an upward departure. The district court replied, “It’s
both.” Id. at 30. When discussing the § 3553(a) factors, the district court placed
significant weight on the seriousness of the offense, LaBelle’s failure to accept
responsibility, the likelihood of deterring future misconduct, and the fact that
LaBelle’s criminal history score did not adequately represent the multitude of
embezzlement crimes she had conducted over the nearly five-year period. The
district court’s independent rationale for its upward variance renders any procedural
error in the upward departure harmless.

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B. Substantive Reasonableness
Finally, LaBelle challenges the substantive reasonableness of her sentence.
LaBelle contends that the district court gave improper weight to the number of
checks written by LaBelle and did not consider LaBelle’s mitigating circumstances.
“The sentencing court abuses its discretion if it fails to consider a relevant
factor that should have received significant weight, gives significant weight to an
improper or irrelevant factor, or commits a clear error of judgment in weighing the
appropriate factors.” United States v. Luscombe, 950 F.3d 1021, 1031 (8th Cir.
2020). When a district court imposes a sentence outside the Guidelines range, we
give “due deference to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” Id. (internal quotations omitted).
Here, the district court imposed a sentence 23 months above the top of the
Guidelines range. The district court adequately justified the upward
departure/variance in light of the § 3553(a) factors. In particular, the district court
focused on the nature and circumstance of the offense, including the large amount
of money embezzled via hundreds of unauthorized checks. The district court
considered LaBelle’s history and the need to promote respect for the law. It did so
when it addressed LaBelle’s underrepresented criminal history, as well as her failure
to pay a significant restitution amount up to that point. The district court did consider
LaBelle’s mitigating evidence related to past abuse and her promise to pay back the
embezzled funds but accorded it little to no weight. The district court found that the
aggravating factors outweighed the mitigating evidence and imposed the statutory
maximum sentence. Viewing the full record, we conclude that the sentence was not
substantively unreasonable.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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