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Illegal sentence imposed where the court considered the failure to pay full restitution


In U.S. v Plate the defendant worked at Wells Fargo in Orlando Florida as a financial advisor. One of her long time clients was an elderly couple for whom she managed their securities and bond portfolio. She became close friends with the couple. As their mental capacities diminished with age Plate began to perform personal duties for the couple beyond the traditional financial advisor role. After Plate’s husband died, she eventually induced the husband to execute a Wells Fargo ACH authorization agreement allowing for the transfer of funds from the couples’ Wells Fargo trust account into a separate account. Plate manipulated the husband into writing her personal checks and then she liquidated the securities in the trust account by making a number of unauthorized sales. In total she defrauded the couple of $176,079 and left noting in the account.

She was charged with a single count of embezzlement by a bank officer in violation of 18 U.S.C. § 656 and pled guilty to the offense. The PSI came back with a guideline range of 27-33 months.  Prior to sentencing Plate filed a memorandum asking for a probation sentence and to show remorse she sold her house to pay restitution and expressed determination to pay everything back. She argued probation was appropriate because her crime was an anomaly brought on by depression and reduced mental capacity following the death of her husband. To support her position she attached a forensic evaluation by a licensed psychologist who concluded that she had developed a maladaptive coping style of avoidance characterized by apathy and impaired emotional understanding and reduced mental capacity brought on by the loss of her husband.

The defendant’s sentencing memorandum contained numerous letters and most notably the victims’ adult children wrote on her behalf saying that there whole family believed that sending her to jail would not be appropriate on the facts of the case. She brought a $45,000 cashier’s check to sentencing from the proceeds of the sale of her house towards restitution. Because the PSI calculated her net worth as $47,500, it was “pretty much everything she had.” The prosecution argued that a probationary sentence was not possible because as a class B felony, the judge had to impose a prison sentence. The defendant argued that because she self-surrendered to jail, the judge could impose time-served for the one day followed by supervised release, a legal sentence assuming the factors under 3553(a).

The court said that it would give the defendant probation if she had paid back the restitution, but would not give her probation if the restitution is outstanding. She was sentenced to 27 months but the court said that if she and her friends and supporters pay the restitution the judge would convert the prison sentence to probation.

The appellate court reversed the illegal federal criminal sentence because the court abused its discretion by giving significant weight to an improper or irrelevant factor. Her inability to pay restitution in full was an impermissible factor as it is not among the factors listed in section 3553(a). The defendant’s payment or failure to pay restitution is irrelevant because the judge gave significant weigh to Plate’s inability to pay as a sentencing factor and he ended up imposing a prison term based solely on an impermissible factor under section 3553(a).

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