US v. Patsy Gardner, No. 10-4947 (4th Cir. 2011)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4947 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PATSY GARDNER, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, Senior District Judge. (2:09-cr-00914-PMD-1) Submitted: May 31, 2011 Decided: June 7, 2011 Before KING, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Nicole N. Mace III, THE MACE FIRM, Myrtle Beach, South Carolina, for Appellant. William N. Nettles, United States Attorney, Eric J. Klumb, Assistant United States Attorney, Charleston, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Patsy embezzlement. Gardner pled guilty to conspiracy The district court sentenced her to 37 months imprisonment, and ordered her to pay restitution. challenging and the adequacy of the district She appeals, court's factual findings in overruling her objections to sentencing enhancements for her role in the offense and obstruction of justice. She also contends that the district court erred by requiring her personal injury restitution. monies to be used to pay her Finding no error, we affirm. The offense settlement probation level be officer increased by recommended two that levels Gardner s based on her supervisory role in the offense and another two levels based on her having provided a false statement to the investigators. At sentencing, Gardner objected to the role enhancement, asserting that she and her two co-defendants were equal partners in the scheme. probation She also objected to the word substantially in the officer s obstruction of recommendation justice that the enhancement court because apply the Gardner substantially impeded th[e] investigation. The district court ruled that the role adjustment is appropriate. obstruction The court did not make an express ruling on the of justice enhancement, but adopted the recommendations in the presentence report and sentenced Gardner 2 to 37 months Guidelines imprisonment range. the bottom court The of also ordered the advisory Gardner to pay restitution in the amount of $131,747.10, due immediately. In the written judgment, the court ordered that restitution be paid at $100 per month beginning released from prison. thirty days after Gardner was In the statement of reasons, the district court checked the box indicating that it adopts the presentence investigation report without change. The district court is required to make findings when ruling on disputed sentencing issues. Crim. P. 32(i)(3)(B) district court (providing must - for that, any at disputed factual See Fed. R. sentencing, the portion the of presentence report or other controverted matter - rule on the dispute States or v. determine Llamas, that 599 a F.3d ruling 381, is 388 unnecessary ); (4th Cir. United 2010) ( [A] sentencing court must provide a sufficient explanation of its rationale in making factual findings to support its calculation of a defendant s Guidelines range. ) (internal quotation marks omitted). In making such requisite findings, the district court may expressly adopt the recommended findings contained in the presentence report. 245 (4th Cir. 1991). United States v. Morgan, 942 F.2d 243, However, the court must make clear on the record that it has made an independent finding and that its finding coincides with the recommended 3 finding in the presentence report. 908, 912 (4th determination specific Id.; see United States v. Walker, 29 F.3d Cir. where findings 1994) court but (upholding merely court sentencing overruled confirmed objections in the court s without Statement of Reasons that it adopted findings in the presentence report). Here, findings of the the district presentence court expressly report, and, adopted after the hearing the argument of the parties as to the applicability of the role enhancement for Gardner, determined the role adjustment is appropriate. In the presentence report, the probation officer analyzed applicability the of the enhancement, noting that Gardner directed her two co-defendants in the commission of the offense. She was their supervisor in the office, she directed or ordered them to issue and cash the misappropriated checks, and she received a larger share of the total embezzled funds. We conclude the adopted expressly that by findings the of the district presentence court, are report, as sufficient to support the role enhancement, and thus we affirm the application of the enhancement. See United States v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009) ( The court s ruling regarding a role adjustment is a factual determination reviewed for clear error. ). Next, Gardner contends that the district court s failure to explicitly rule on her challenge to the obstruction 4 of justice enhancement resentencing. requires Gardner s vacatur objection, as and it a remand relates to for the obstruction of justice enhancement, was merely to the use of the word substantially to describe the level to which her false information to the investigators impeded th[e] investigation. At sentencing, Gardner asserted only that she should have been given another interview to clarify and correct her earlier false statement. At no time did Gardner deny having provided a false statement when initially interviewed by the officials. Because Gardner failed to make a specific objection to the application of the enhancement and failed to make any showing that the enhancement should not apply, the district court was free to adopt the findings in the presentence specific inquiry or explanation. report without more United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990) ( The defendant has an affirmative duty to make a showing that the information in the presentence report is unreliable, and articulate the reasons why the facts contained therein are untrue or inaccurate. ). Gardner did not make the requisite showing; therefore, the district court did not err in adopting the findings in the presentence report as to this enhancement. Gardner s final challenge is to the district court s determination that a $91,000 personal injury settlement due to Gardner should be applied to the restitution due. 5 She asserts that the financial resources, projected earnings and other financial obligations. These are factors court to be failed to considered payment schedule. consider when her establishing the restitution See 18 U.S.C. § 3664(f)(2) (2006). However, with the new information about the $91,000 judgment Gardner was about to receive, the court determined under 18 U.S.C. § 3664(n) (2006), that this money should be paid in a lump obligated sum. to substantial Section provide resources 3664(n) restitution, from any provides: or source, pay a If fine, including a person receives inheritance, settlement, or other judgment, during a period of incarceration, such person shall be required to apply the value resources to any restitution or fine still owed. § 3664(n). and of such 18 U.S.C. The district court properly applied this provision directed that the money be applied to the restitution judgment. Accordingly, we affirm Gardner s sentence, and affirm the determination that the $91,000 settlement be used to make a lump sum payment on the restitution debt. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
