Cash Cow

United States v. Wagner-Dano, No. 10-4593-cr (2d Cir. May 14, 2012) (Winter, Livingston, CJJ, Rakoff, DJ)

Melissa Wagner-Dano was a bookkeeper in upstate New York, where she worked for a small town and two large dairy farm cooperatives. She stole more than $1 million from her employers through unauthorized withdrawals from their bank accounts, using used the money for various personal projects. Wagner-Dano covered her tracks by transferring funds among the employers’ accounts. As the scheme unraveled, she blamed the missing funds on computer errors, then repaid some of the money from her personal bank account. Finally, she threw in the towel, admitted her crime and pled guilty to wire fraud.

On appeal, she claimed that several errors in her presentence report rendered her 78-month, top-of-the-range sentence procedurally unreasonable. Wagner-Dano had detailed these objections to the Probation Department, which had explained them in the addendum to the report, but at sentencing her counsel referred to – but did not elaborate on – them.

The circuit concluded that some of these objections were resolved by the district court’s adoption of the findings of the presentence report. Others, however, were at least arguably not, because they involved more complex discussions of Wagner-Dano’s motivations at various stages of the criminal activity and coverup. Nevertheless, the circuit concluded that Wagner-Dano’s failure to press these claims at the sentencing hearing limited the court’s review to plain error: “We review for plain error where, as here, an appellant asserts that the district court neglected to address an objection to the PSR in violation of Rule 32(i)((B), but that appellant failed to alert the district court of this procedural issue after the district court made its findings.” In reaching this result, the court extended existing precedent that, where an appellant argues for the first time on appeal that the district court failed to consider the § 3553(a) sentencing factors, appellate review is for plain error only.

The circuit noted that if “the defendant or the Government believes that a particular factual issue is material and the district court neglects to address the issue at sentencing, it is not difficult – indeed, it should be intuitive – to bring this procedural error to the district court’s attention.” In so holding, the court also seemingly abrogated a line of cases under the precursor to Rule 32(i)(3), the 1983 through 1994 version, which was codified as Rule 32(c)(3)(D). But the court noted that subsequent versions of the relevant portion of Rule 32 had been specifically intended to reduce the burdens on district courts and confine the purpose of the rule to resolving factual issues that were material to the sentence itself. And the court also noted that it has not recently remanded cases to remedy an unpreserved “technical violation” of Rule 32(i)(3).

Applying the plain error standard here, the court affirmed, since none of the matters that Wagner-Dano claimed the district court failed to address would have been likely to affect her sentence.

Comment: This decision once again demonstrates the importance of thorough, focused advocacy at sentencing, particularly where an appeal is likely.