Youngstown Daily Legal News

Resentencing ordered for woman who stole $180,000 in retirement funds

ANNIE YAMSON
Special to the Legal News
Published: August 22, 2013

A woman convicted of stealing more than $180,000 in government funds recently found herself back in court for violating the terms of her supervised release from prison.

The 6th Circuit U.S. Court of Appeals released an opinion recently addressing Sophia Austin’s appeal after she was sentenced for her violation in the United States District Court for the Northern District of Ohio.

Austin pleaded guilty in 2007 to violating 18 U.S.C. 641, theft of government funds.

Austin continued to collect more than $180,000 of United States Railroad Retirement widow’s benefits that were paid to her mother after her death.

She was sentenced to 37 months in prison and restitution for the amount of money that was stolen, followed by a three-year term of supervised release.

After completing her prison term and while under supervision, Austin tested positive for cocaine and was accused of not making the required restitution payments.

The district court responded by summoning Austin for a revocation hearing, where she appeared with counsel.

After some indecision, Austin decided to contest the violations but after testimony from her probation officer and a review of the record, the district court found Austin did, in fact, violate the conditions of her release.

The district court imposed a seven-month prison term and extended her supervised release an additional 12 months.

Austin appealed to the 6th Circuit claiming that her sentence was substantively unreasonable, that the length of the new term of supervised release was unclear and that she was provided ineffective assistance of counsel.

“We affirm the term of incarceration, remand for clarification regarding the length of supervised release and decline to review Austin’s counsel’s performance,” wrote Judge Gregory Van Tatenhove, who sat by designation, on behalf of the 6th Circuit’s three-judge appellate panel.

According to the appellate panel, a sentence may be substantively unreasonable if the district court chooses the sentence arbitrarily, grounds the sentence on impermissible factors or unreasonably weighs a pertinent factor.

“A rebuttal presumption of reasonableness attaches to sentences within the applicable Guidelines range,” Judge Van Tatenhove wrote.

Austin claimed the district court’s sentence did not honor the purpose of supervised release, which is rehabilitation.

Austin contended she needed treatment for her drug problem, not incarceration.

In a letter to the district court dated prior to the revocation hearing, Austin acknowledged using drugs but attributed her use to stresses caused by her family. She requested counseling as punishment.

“Austin neglects to mention that the district court explained why treatment was not going to be selected,” Judge Van Tatenhove pointed out. “Treatment had been provided after she tested positive for drugs in April 2012.”

The failed drug screening at issue in the revocation hearing took place in July, two months after Austin received treatment.

In addition, Judge Van Tatenhove found the district court was faced with a defendant who both admitted and denied using drugs.

“Treatment could have been imposed by the court, but that it deemed another option preferable is completely reasonable,” he stated. “There is nothing to suggest that the within-Guidelines sentence was not carefully considered, individually tailored, and one to which deference is due.”

The 6th Circuit found otherwise when it addressed the issue of Austin’s supervised release.

The appellate panel determined that Austin’s underlying conviction constituted a Class C felony, which dictates a maximum three-year term of supervised release.

Judge Van Tatenhove explained that “the maximum amount of time supervision can be imposed, must be calculated after any period of incarceration is subtracted.”

Therefore, in Austin’s case, once a seven-month prison sentence was ordered, 29 months was the longest possible period of supervision that could be imposed.

“The district court’s sentence appears to exceed that limit,” held Judge Van Tatenhove.

During the revocation hearing, the district court stated, “I will extend 12 months the original three years that I put in place.”

The court of appeals found the district court’s sentence was subject to at least two different interpretations but, regardless, the sentence was too long.

“Plain error thus results,” concluded Judge Van Tatenhove. “Consequently, we vacate Austin’s supervised release sentence and remand to the district court for resentencing only as to that matter.”

The court of appeals refused to address Austin’s claims of ineffective assistance of counsel, finding that such a claim “is disfavored on direct appeal.”

Circuit judges John Rogers and Deborah Cook joined Judge Van Tatenhove to form the majority.

The case is cited United States v. Austin, Case No. 12-4431.

[Back]