United States of America v. Kimberly Rene Grande

United States Court of Appeals
For the Eighth Circuit
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No. 24-1193
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United States of America
Plaintiff - Appellee
v.
Kimberly Rene Grande
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: January 14, 2025
Filed: February 12, 2025
[Unpublished]
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Before SMITH, BENTON, and ERICKSON, Circuit Judges.
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PER CURIAM.
Kimberly Rene Grande pled guilty to bank fraud, in violation of 18 U.S.C. §
1344(2). The district court1 sentenced her to 36 months in prison and three years of
supervised release. It ordered $118,949.70 in restitution. She appeals the sentence
1 The Honorable Lee P. Rudofsky, United States District Judge for the Eastern
District of Arkansas.

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and amount of restitution. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
I.
Grande believes the above-guidelines 36-month sentence (range was 18 to 24
months) is substantively unreasonable. This court reviews for abuse of discretion.
United States v. Petersen, 848 F.3d 1153, 1157 (8th Cir. 2017). There is an abuse
of discretion “if the district court fails to consider a relevant factor that should have
received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but commits a clear error of
judgment in weighing those factors.” Id. (internal quotation marks omitted). “[I]t
will be the unusual case when we reverse a district court sentence—whether within,
above, or below the applicable Guidelines range—as substantively unreasonable.”
United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc).
Grande contends the district court abused its discretion by relying on the
nature and circumstances of the offense and related conduct when those factors were
already considered in determining the guidelines range. But it “is well-settled that
factors taken into account in calculating the advisory guidelines range can form the
basis of an upward variance.” United States v. Manuel, 73 F.4th 989, 993 (8th Cir.
2023).
Grande asserts her sentence creates unwarranted sentencing disparities. As
evidence, she cites only national statistics from the United States Sentencing
Commission. But “reliance on national statistics of sentences imposed by different
judges provides an appellate court no principled basis to say which defendants
received the appropriate sentence.” United States v. Hill, 8 F.4th 757, 761 (8th Cir.
2021) (cleaned up).
Grande believes the district court failed to consider as mitigating factors: her
lack of criminal history, mental health issues, drug addiction, or her desire to fulfill

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her restitution obligations. But these issues were presented during the sentencing
hearing. “Where the district court heard argument about specific factors, we may
presume that the court considered those factors even if the court did not address them
expressly.” United States v. Beyers, 854 F.3d 1041, 1043 (8th Cir. 2017) (cleaned
up).
The court said:
Let me start with the nature of the offense. I think within this
category of offense, this is on the high side of the type of conduct I
would see. . . . In terms of the nature of the offense, this is not
something you did once, this is something you did over and over and
over again. It is not something you admitted to, it is something you
were caught doing and then admitted to. And it is not a small amount
of money. It is a significant amount of money, and whether or not it
happened to hurt the victims in terms of their pocketbook is not the
question, but that is a large amount of money that has the potential, the
significant potential to hurt people, to hurt a company, to hurt the
amount of jobs a company can provide.
. . . .
The next factor I would like to talk about is specific deterrence
and promotion of the respect for the rule of law and protection of the
public. I want to talk about all three of them together because what I
have to say relates to all three of them. So your offense and the related
conduct shows an incredible level of dishonesty. It shows an incredible
level of dishonesty to people who put their trust in you, gave you a job,
and even when you stumbled at that job figured out a way to help you
out so they thought you could perform that job.
Additionally, when you are on pretrial release, multiple times it
appears for you to have done things that are dishonest with our
probation office. Whether we are talking about diluting drug tests,
whether we are talking about not showing up to drug tests, whatever,
those type of things, whether it’s talking about admitting only partially
that, well, this must have been marijuana from a long time ago when it
turns out after the report it actually was new use, all of those things

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indicate a continued level of dishonesty leading up to what I think you
understand was the biggest dishonesty problem we have. You sat there
in court with a straight face knowing that I was going to test you again
and you lied to me straight in the eye, and to be perfectly frank, I almost
believed you. It appears that you are very good at lying. That causes
significant concerns.
. . . .
To be perfectly frank, I did not believe your allocution. There’s
no reason I should believe your allocution based on what you’ve done
in the past. All of that suggests to me that the guideline sentence is not
enough. Quite frankly, it’s really nowhere near enough. You have not
learned your lesson, you have not been specifically deterred in my view,
and my sentence needs to do that.
The court thoroughly considered the § 3553 factors and did not abuse its discretion
in varying upward. See United States v. May, 70 F.4th 1064, 1073 (8th Cir. 2023)
(“[R]egardless of some mitigating circumstances, a sentencing court has wide
latitude to weigh the § 3553(a) factors in each case and assign some factors greater
weight than others in determining an appropriate sentence.”).
II.
Grande argues the court erred in calculating the restitution amount. This court
reviews the amount of a restitution order for clear error. See United States v.
Gammell, 932 F.3d 1175, 1180 (8th Cir. 2019).
This court need not decide the issue because Grande waived her right to appeal
her restitution in her plea agreement. Reviewing an appeal waiver, this court
considers whether: (1) the appeal falls within the scope of the waiver; (2) both the
waiver and plea agreement were entered into knowingly and voluntarily, and (3)
enforcing the waiver would result in a miscarriage of justice. See United States v.
Guzman, 707 F.3d 938, 941-42 (8th Cir. 2013), citing United States v. Andis, 333
F.3d 886, 889-90 (8th Cir. 2003) (en banc).

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Here, the restitution order falls within the scope of the waiver. The plea
agreement says that “the defendant waives the right to appeal the Court’s
determination of the amount of restitution and subsequent restitution order, if any.”
The waiver and plea were entered knowingly and voluntarily. Grande “carefully
reviewed every part of it with her attorney,” “voluntarily agrees to the terms and
conditions,” and entered it “consciously and deliberately, by the defendant’s free
choice, and without duress, undue influence or otherwise being forced or compelled
to do so.” Enforcing the waiver will not be a miscarriage of justice. See id.
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The judgment is affirmed.
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