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United States v. Thiemann

November 30, 2006


The opinion of the court was delivered by: Judge Vanaskie


Theresa Thiemann appeals her sentence on a conviction by guilty plea to bank larceny in violation of 18 U.S.C. § 2113(b). She contends that in imposing a prison term of six months the Magistrate Judge failed to give meaningful consideration to the factors set forth in 18 U.S.C. § 3553(a), and that a prison term of six months is unreasonable under the facts and circumstances presented at the time of sentencing. Having carefully reviewed the record in the context of the applicable law, I find that the Magistrate Judge articulated adequate reasons, logically related to the pertinent sentencing factors set forth in 18 U.S.C. § 3553(a), to support a determination that a sentence of six months imprisonment is reasonable. Accordingly, the sentence will be affirmed.


As related in the Presentence Investigation Report ("PSI") prepared in this matter,*fn1 in the fall of 2003 Ms. Thiemann procured a secured credit card from First Premiere Bank, Sioux Falls, South Dakota, in her mother's name by using the bank routing number and checking account number for the Housing Authority of Luzerne County maintained at the Luzerne National Bank to serve as the security for the credit card. (PSI, ¶¶ 5-6.) First Premiere Bank sustained a loss of $725.49. (Id. at ¶ 9.) Thiemann also fraudulently procured withdrawals from the Housing Authority's account at Luzerne National Bank, but losses were averted by discovery of the scheme. (Id. at ¶ 5.) On December 11, 2003, Ms. Thiemann admitted her involvement in the fraudulent scheme to federal law enforcement officers. (Id. at ¶ 7.)

On August 9, 2004, a one-count Information was filed against Ms. Thiemann in this Court. The Information charged her with intent to steal less than $1,000 in currency from the Luzerne National Bank in violation of 18 U.S.C. § 2113(b). This crime has a maximum term of imprisonment of one year, and is thus classified as a misdemeanor.

On May 9, 2006, Ms. Thiemann plead guilty to the Information. A presentence investigation was ordered by the Magistrate Judge to whom this matter had been assigned.

The PSI, completed on August 22, 2006, detailed a host of prior convictions of Ms. Thiemann for having issued checks with insufficient funds in her account. (PSI at ¶¶ 26-45.) In total, 20 instances of issuing bad checks covering the period March 10, 1998 through October 13, 2002 were related in the PSI. Ten of the instances had been consolidated into a single disposition. The report further indicated that Ms. Thiemann had not satisfied her restitution obligation for a number of the bad checks. (PSI at ¶¶ 33-42.)

Under U.S.S.G. § 4A1.2 (2004), Ms. Thiemann received only one point on her criminal history computation for the twenty separate instances of writing bad checks because she was placed on probation for each conviction. Based upon an undisputed total offense level of 4 and a Level I criminal history category, Ms. Thiemann's guideline range was zero to six months, placing her in Zone "A" of the United States Sentencing Commission Sentencing Table. A sentence of imprisonment is not required where the applicable guideline range falls within Zone A. U.S.S.G. § 5C1.1(b).

On September 8, 2006, Ms. Thiemann appeared before the Magistrate Judge for sentencing. She was represented by an Assistant Federal Public Defender, who acknowledged that the advisory guideline range had been correctly determined to be 0 to 6 months. Counsel requested that Ms. Thiemann be placed on probation. (Sentencing Tr. at 3.)

The Magistrate Judge, observing that "we normally want to put somebody on probation because what we want them to do is have some guidance and help and to tow the line," (id. at 6), expressed concern that Ms. Thiemann had not been reformed by the numerous prior instances of probation for her proclivity to write bad checks. (Id. at 7.) The Magistrate Judge also expressed concern that Ms. Thiemann had failed to satisfy her financial obligations arising from the prior convictions for writing bad checks. (Id. at 9-10.) Another factor mentioned by the Magistrate Judge was that Ms. Thiemann had informed a Probation Officer that she did not know the whereabouts of her four children at the time of the presentence report interview. (Id. at 8-9.)*fn2 The Magistrate Judge further indicated concern that, as of the date of the revised PSI (August 22, 2006), Ms. Thiemann was unemployed. (Id. at 10.)*fn3 While concluding that the severity of her past criminal history was under-represented by the guideline calculation, the Magistrate Judge determined not to adjust her criminal history category, but did impose a prison term of six months along with a one-year term of supervised release. (Id. at 17-20.) No fine was imposed due to Ms. Thiemann's financial circumstances, but she was directed to make restitution to First Premiere Bank in the amount of $725.59. (Id. at 19-20.) The conditions of supervised release included payment of the restitution in monthly installments of not less than $50 and participation in a mental health counseling program approved by the United States Probation Office for this District. (Id. at 20.)

On September 13, 2006, Ms. Thiemann filed a Notice of Appeal pursuant to Rule 58(g)(2)(B) of the Federal Rules of Criminal Procedure. (Dkt. Entry 37.) The Magistrate Judge had jurisdiction over this matter pursuant to 18 U.S.C. § 3401(a), and this Court has jurisdiction over Ms. Thiemann's appeal pursuant to 18 U.S.C. § 3402. The appeal has been fully briefed, and oral argument was conducted on November 3, 2006. The matter is ripe for disposition.


Ms. Thiemann argues that the sentence imposed by the Magistrate Judge is unreasonable because he "failed to articulate a meaningful consideration of the sentencing factors in 18 U.S.C. § 3553(a)," (Mem. of Law in Supp. of Appeal, Dkt. Entry 44, at 3), and that, in any event, a prison term of six months is unreasonable in light of the facts and circumstances presented in this case.

Defendant's arguments spring from United States v. Booker, 543 U.S. 220 (2005), and Third Circuit precedents that interpret this seminal case. In particular, Defendant relies upon the directive in United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006), that the sentencing judge give ...

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