United States of America, Appellee, v. Mildred Yancey, Appellant, 56 F.3d 69 (8th Cir. 1995)

After Mildred Yancey pled guilty to one count of making a false statement in violation of 18 U.S.C. § 1001 (1988), the District Court¹  sentenced her to serve five months at the St. Francis House in Little Rock, Arkansas. Yancey appeals her sentence.

The government initially charged Yancey with two counts of making a false statement in violation of 18 U.S.C. § 1001 and two counts of forgery in violation of 18 U.S.C. § 510(a) (1) (1988) after discovering that she had signed multiple verification forms and negotiated United States Treasury checks issued to her grandparents, Arthur and Annie Brown, over a ten-year period after their deaths. Yancey's criminal acts resulted in total overpayments of $41,295.03 and $37,735.00 by the United States Railroad Retirement Board and the Social Security Administration, respectively.

Yancey argues that the District Court erred when it (1) increased Yancey's base offense level pursuant to U.S.S.G. Sec. 2F1.1(b) (2) (1994) after finding that Yancey engaged in more than minimal planning; and (2) denied Yancey's request for a downward departure based on her physical condition.

The District Court's finding that Yancey engaged in more than minimal planning is not clearly erroneous because this offense involved "repeated acts over a period of time" that were not "purely opportune." See U.S.S.G. Sec. 1B1.1, comment. (n. 1(f)). The District Court's discretionary refusal to depart downward is not reviewable on appeal. See United States v. Kessler, 48 F.3d 1064, 1065 (8th Cir. 1995).

For the foregoing reasons, the sentence imposed by the District Court is affirmed.