United States v. Dorothy Menyweather

For the third time, the United States appeals the sentence imposed upon Defendant Dorothy Menyweather’s conviction by guilty plea to one count of mail fraud, in violation of 18 U.S.C. §§ 1341 and 1346. The government objects to the district *694 court’s eight-level downward departure for mental and emotional condition, diminished capacity, and extraordinary family circumstances, a departure that the district court has reimposed twice after remands from this court. United States v. Meny-weather, No. 01-50438, 36 Fed.Appx. 262 (9th Cir. May 16, 2002) (unpublished disposition) (“Menyweatker I ”); United States v. Menyweather, 69 Fed.Appx. 874 (9th Cir.2003) (unpublished disposition) (“Men-yweather II ”).

While this third appeal was pending, the Supreme Court decided United, States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), altering significantly the legal context in which we must decide this appeal. Before Booker , we reviewed de novo whether a departure was proper under the constraints set forth in the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). See 18 U.S.C. § 3742 (e). Now, instead, we review the district court’s sentence for…

dissenting:

I respectfully dissent. The new sentencing regime does not justify this abdication of our duty of review. The majority’s application of review for abuse of discretion equates it with no review.

For many years, Menyweather worked in administration for the United States Attorney’s office in Los Angeles. During this period, she used her government credit card and other peoples’s cards for almost three years to steal over $435,000— that the government has been able to verify — and faked certifications and computer entries to cover up her thefts. Yet she has not been sent to prison.

Menyweather went to work for the United States Attorney in 1990 as a clerical employee, so she was a long trusted member of the office when she got promoted to procurement in 1997. Almost immediate *703 ly, she began stealing, mostly by using the procurement' credit cards to buy such things for herself as clothes, gift certificates, appliances, cellular phones and service, car repairs, insurance, and even computers. She sold some of what she stole, including $12,500 worth of computer equipment. She also took trips to Alaska, Australia, and Israel, as well as Palm Desert, Dallas, Columbus,…

431 F.3d 692 UNITED STATES of America, Plaintiff-Appellant, v. Dorothy MENYWEATHER, Defendant-Appellee. No. 03-50496. United States Court of Appeals, Ninth Circuit. Argued October 13, 2004. Resubmitted December 7, 2005. Filed December 16, 2005. Nicholas A. Marsh, Trial Attorney, Criminal Division, Public Integrity Section, United States Department of Justice, Washington, D.C., for the plaintiff-appellant. Elizabeth A. Newman, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellee. Appeal from the United States District Court for the Central District of California; Manuel L. Real, District Judge, Presiding. D.C. No. CR-00-01253-R. Before: KLEINFELD, HAWKINS, and GRABER, Circuit Judges. GRABER, Circuit Judge: 1 For the third time, the United States appeals the sentence imposed upon Defendant Dorothy Menyweather's conviction by guilty plea to one count of mail fraud, in violation of 18 U.S.C. §§ 1341 and 1346. The government objects to the district court's eight-level downward departure for mental and emotional condition, diminished capacity, and extraordinary family circumstances, a departure that the district court has reimposed twice after remands…