United States v. 2020-12-08 | 19-30219 | USA V. MICHELLE FERRELL | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHELLE SUSAN FERRELL,

Defendant-Appellant.

No. 19-30219

D.C. No. 2:19-cr-00029-RHW-1

MEMORANDUM
*

Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding

Submitted December 2, 2020
**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

Michelle Susan Ferrell appeals from the district court’s judgment and
challenges the 36-month sentence imposed following her guilty-plea conviction for
wire fraud, in violation of 18 U.S.C. § 1343. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

DEC 8 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 19-30219
Ferrell first contends that the government breached the plea agreement by
implicitly advocating for an above-Guidelines sentence, and by having
representatives of her former employer testify as to the impact of her fraud. The
record reflects that the government reserved the right to oppose a downward
variance, and Ferrell requested a below-Guidelines sentence. The government
therefore did not breach the plea agreement by arguing that a higher, within-
Guidelines sentence was warranted. See United States v. Moschella, 727 F.3d 888,
892 (9th Cir. 2013).
Ferrell also contends that the district court procedurally erred by considering
the impact of her fraud on the community, failing to consider any mitigating
factors, and failing to adequately explain the sentence. We review for plain error,
see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and
conclude that there is none. A district court does not err by “considering the extent
to which the Guidelines did not sufficiently account for the nature and
circumstances of [Ferrell’s] offense.” United States v. Christensen, 732 F.3d 1094,
1101 (9th Cir. 2013). Contrary to Ferrell’s contention, the record demonstrates
that the district court considered her mitigating arguments, but concluded they did
not warrant a shorter sentence. See United States v. Perez-Perez, 512 F.3d 514,
516 (9th Cir. 2008). The record also reflects that the district court thoroughly
explained the sentencing factors and how the circumstances of Ferrell’s crime

3 19-30219
warranted an above-Guidelines sentence.
To the extent Ferrell argues the above-Guidelines sentence is substantively
unreasonable, the district court did not abuse its discretion. See Gall v. United
States, 552 U.S. 38, 51 (2007). The above-Guidelines sentence is substantively
reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of
the circumstances, including, as the district court noted, Ferrell’s criminal history,
the nature and circumstances of the offense, and the need to protect the public. See
Gall, 552 U.S. at 51.
AFFIRMED.