U.S. v. WILLIS, 2009 WL 514313 (11th Cir. March 3, 2009)
Bernetta Willis was convicted of theft of government property and for submitting 17 fraudulent applications for FEMA aid following Hurricane Katrina. The defendant challenged the PSI’s calculation that the intended loss calculation was $471,600 based on the defendant’s 20 fraudulent claims and the maximum aid of $26,200 available for each claim. The defendant argued that the sentencing guidelines should be calculated based on the actual loss of $79,607.45. The Court affirmed the intended loss calculation finding that the district court was presented with sufficient circumstantial evidence of the defendant’s intent to obtain the maximum possible amount through the fraudulent claims. While the district court may not speculate concerning the existence of a fact that might lead to more severe sentence, the district court did not speculate here in arriving at its decision.
The sentence was reasonable and no basis found for downward variance.
The defendant also challenged her sentence on the grounds that the court should have given her a variance. Specifically the court should have considered her diminished capacity which prevented her from accepting guidance from her lawyers. The court rejected the challenge as the forensic evaluation showed defendant “was likely malingering and that she was possibly motivated by external incentives.”
