United States of America, Appellee, v. Thomas S. Boothe, Appellant, 491 F.3d 916 (8th Cir. 2007)

Thomas Boothe appeals the forty-one month sentence imposed by the district court,¹  following his conviction for wire fraud. We affirm.

Boothe's wire fraud conviction stems from a scheme to steal and sell airplane parts and electronic equipment from his employer, Raytheon. When Boothe was given a promotion, he was directed by senior management to dispose of certain parts. In the midst of this process, Boothe noticed numerous items that were marketable, and took those items from Raytheon's premises for sale. He later found additional obsolete items in Raytheon inventory rooms and he also removed [491 F.3d 917] 917 those items from Raytheon in order to sell them as his own. Over time he removed and resold airplane parts that, in sum, had originally been worth over one million dollars.²  Boothe set up a separate company and used the internet to resell the parts. When Raytheon discovered that parts had been stolen and resold by Boothe, he was terminated. When confronted by authorities about the scheme, Boothe admitted wrongdoing and pleaded guilty to wire fraud.

At sentencing, Boothe received a two-level enhancement for abusing a position of trust, and a reduction for acceptance of responsibility. Largely due to the sixteen level enhancement for an intended loss of over one million dollars, his resulting range was forty-one to fifty-one months. Boothe's counsel advocated for an extraordinary variance — probation instead of prison time, citing Boothe's young children and his considerable religious and civic work. The district court declined defense counsel's invitation, citing United States v. Ture, 450 F.3d 352, 357 (8th Cir. 2006) (reversing the district court's sentence of probation when the Guidelines called for at least twelve months of incarceration). The district court discussed the 18 U.S.C. § 3553(a) factors, gave Boothe a sentence at the bottom of the Guidelines' range, and imposed restitution in the amount of $1,193,931.27. On appeal Boothe challenges the forty-one month sentence as unreasonable, arguing that the district court mistakenly believed it could not vary below the Guidelines.

We review the district court's ultimate sentence for reasonableness, United States v. Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, ___ U.S. ___, 126 S. Ct. 276, 163 L. Ed. 2d 246 (2005), including the court's decision not to vary from the Guidelines based on 18 U.S.C. § 3553(a), United States v. Mickelson, 433 F.3d 1050, 1055 (8th Cir. 2006). We afford the district court's decision to sentence a defendant within the Guidelines a presumption of reasonableness. United States v. Lincoln, 413 F.3d 716, 717-18 (8th Cir. 2005); Rita v. United States, ___ U.S. ___, 127 S. Ct. 2456, 2461-63, 168 L. Ed. 2d 203 (2007).

After reviewing the record, we find that the district court reasonably sentenced Boothe, based on our precedent. In making this determination, the district court correctly dispatched its duties under Haack. The district court had good reasons for rejecting Boothe's request for such an extraordinary variance. In fashioning the ultimate sentence, the district court took into account Boothe's history and characteristics, the seriousness of the [491 F.3d 918] 918 crime, the need for deterrence, and the need to treat like-crimes similarly.

There is no merit to Boothe's argument that the district court was confused about Boothe's religiousness. Although Boothe argues that the district court thought Boothe had made a "jailhouse conversion," it is clear that the district court knew Boothe's personal history, and in fact the court questioned why Boothe had not followed that personal religious conviction when he made the decision to steal from his employer. While the court did make a comment about joining a church after breaking the law, it seems clear from the context of the statement that the court was extrapolating about the effect of Boothe's case on future cases if a jail sentence was not imposed.

Because the district court's forty-one month sentence is reasonable, we affirm.