The Melloul-Blamey Construction Company in Greenville, South Carolina hired Tucker as office manager in October 2000. She began embezzling funds beginning in June 2002, by setting up a company called Hummingbird Marketing, of which she was sole proprietor, and using it as a "dummy vendor." (J.A. at 56.) She would request that a company official at Melloul-Blamey write checks to Bank of America for the purpose of purchasing cashier checks to pay vendors. She then took the company checks to Bank of America, where she exchanged them for certified checks made out to her, to cash, or to Hummingbird Marketing and not to legitimate vendors. Tucker then used the money to pay her personal credit card bills and to make restitution payments to the United States Clerk of Court for two previous fraud convictions.(emphasis added). Tucker's Guideline range was 24 to 30 months. At sentencing, she argued for a sentence within that range, noting a history of depression that was reflected in the PSR. However, the district court concluded that a sentence in the Guideline range was insufficient to protect the public from further crimes by Tucker because she was a "dedicated embezzler and thief." The court calculated, without showing its work, an underrepresenation of criminal history departure to achieve a Guideline sentence of 60 months, but concluded that was insufficient. The district court finally imposed an upward variance of 144 months in prison.
Tucker appealed the scope of the district court's variance, but did not contest that some variance in her case was appropriate. The Fourth Circuit agreed, and vacated Tucker's sentence. The court initially rejected Tucker's argument that the district court focussed on one of the 18 USC 2553(a) factors - the need to protect the public - to the exclusion of all others, noting that giving one factor greater weight does not necessarily entail disregarding the others. The court then concluded that the district court failed to adequately supports its basis for a 144-month sentence. The court noted that the variance in this case was greater in length and in terms of deviation from the Guidelines than in Davenport and that the district court failed to adequately explain why such a great variance was required (it provided no reason why, for instance, the 60-month sentence it mentioned was not sufficient). Finally, several of the factors noted by the district court were already taken into account by the Guidelines.
Tucker's sentence was vacated and the case remanded for resentencing.
Congrats to the South Carolina FPD office on the win!