United States of America v. Susan Barrett

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2623
UNITED STATES OF AMERICA
v.
SUSAN BARRETT,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 06-cr-0610-1
(Honorable Joseph H. Rodriguez)
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 2, 2009
Before: SCIRICA, Chief Judge, SLOVITER and HARDIMAN, Circuit Judges.
(Filed May 27, 2009)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Susan Barrett pleaded guilty to one count of bank theft in violation of 18 U.S.C. §
2113(b), for which she was sentenced to thirty-seven months of imprisonment. Barrett
appeals her sentence, contending the District Court committed procedural error by failing

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We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).
2
Under Gall, we review the sentence to ensure
the district court committed no significant procedural error, such as failing
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2
to afford any weight to other factors required under 18 U.S.C. § 3553(a). We disagree
and will affirm.1
I.
As bank manager of Commerce Bank in Sicklerville, New Jersey, Barrett made
unauthorized withdrawals from the personal and business accounts of Frank Fedele
during his incapacity caused by a stroke and after his death. To cover debits Barrett made
from Fedele’s account, she also made unauthorized withdrawals from the account of
Fedele’s daughter, Diane Fedele.
Barrett pleaded guilty to one count of bank theft. Facing an advisory Guideline
range from thirty-seven to forty-six months imprisonment, Barrett asked for an eighteen-
month imprisonment with supervised release because of her acceptance of responsibility
as exemplified by partial restitution to Commerce Bank and the Fedele family,
cooperation with the FBI and bank officials, and current employment indicating lack of
recidivism. The District Court rejected these arguments and imposed a within-Guidelines
sentence.
We review the District Court’s sentencing decision for abuse of discretion. Gall v.
United States, 128 S. Ct. 586, 591 (2007).2 Because the trial court possesses a “superior

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(...continued)
to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 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. Assuming that the district court’s sentencing decision is
procedurally sound, the appellate court should then consider the substantive
reasonableness of the sentence imposed.
128 S. Ct. at 597. Barrett does not challenge the substantive reasonableness of her
sentence.
3
Under 18 U.S.C. § 3553(a), the relevant factors are: “(1) the nature and circumstances
of the offense and the history and characteristics of the defendant; (2) the need for the
sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B) to afford adequate deterrence to
criminal conduct; (C) to protect the public from further crimes of the defendant; and (D)
to provide the defendant with needed educational or vocational training, medical care, or
other correctional treatment in the most effective manner; (3) the kinds of sentences
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vantage point” in reviewing the facts and their import to the case, we accord the district
court due deference in sentencing decisions. United States v. Tomko, 562 F.3d 558, 566
(3d Cir. 2009) (en banc).
II.
Barrett contends the District Court committed procedural error by failing to give
meaningful consideration to several mitigating factors in its within-guidelines sentencing.
“After giving both parties an opportunity to argue for whatever sentence they deem
appropriate, the district judge should then consider all of the § 3553(a) factors to
determine whether they support the sentence requested by a party . . . [and] make an
individualized assessment based on the facts presented.” Gall, 128 S. Ct. at 596–97.3

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(...continued)
available; (4) the kinds of sentence and the sentencing range established for . . . the
applicable category of offense committed by the applicable category of defendant as set
forth in the guidelines.”
4
In recognizing the possibility of a sentence which varies from the Sentencing
Guidelines, the District Court noted the advisory nature of the Sentencing Guidelines as
set forth in United States v. Booker, 543 U.S. 220 (2005). Likewise, it properly
considered the mitigating factors of 18 U.S.C. § 3553(a) in imposing a within-Guidelines
sentence. The court started by calculating the Guidelines range: “Now, we’re dealing
with the guidelines, which obviously are advisory and no longer mandatory, which simply
means that the guidelines give you a starting base. The base has to be recognized as a
comprehensive calculation and quantification of a lot of relevant factors. The relevant
factors create the base.” The court then expressly considered the factors outlined in 18
U.S.C. § 3553(a) with regard to Barrett’s bank theft. Namely, the court examined the
need for a sentence that promotes respect for the law and provides adequate deterrence to
others through a punishment of imprisonment. It also took into account the need to avoid
unwarranted sentencing disparities within the wide range of sentencing of white collar
offenders, as well as Barrett’s restitution efforts that began before her plea was entered.
Finally, the court addressed Barrett’s culpability, noting that although “a lot of that’s
already calculated within the [Guidelines] range,” Barrett’s deception was a factor of
concern for appropriate sentencing. This discussion provides “appropriate and judicious

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consideration” of the § 3553(a) factors in light of Barrett’s circumstances. United States
v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007).
The District Court reasonably considered Barrett’s mitigating factors. The court is
not required to address the specific weight it gave to each factor; instead, it need only
“articulate enough to satisfy the appellate court that [it] has considered the parties’
arguments and has a reasoned basis for exercising [its] own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356 (2007). Here, the District Court
adequately articulated its reasoning for sentencing and gave meaningful consideration to
the § 3553(a) factors.
III.
Because the District Court made no procedural error in sentencing Barrett, we will
affirm the judgment of conviction and sentence.

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