United States v. Dorothy Menyweather

ORDER

The opinion filed on December 16, 2005, is amended as follows:

On slip opinion page 16488, line 17 [ 431 F.3d 692, 696 ], beginning with “Also, because .... ” and ending on page 16489, line 6 [ 431 F.3d at 697 ], “Haack, 403 F.3d at 1003.” delete and replace with the following:

With this amendment, Judges Hawkins and Graber have voted to deny the petition for rehearing and petition for rehearing en banc. Judge Kleinfeld has voted to grant the petition for rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it. ■ - ■■

The petition for rehearing and petition for rehearing en banc are DENIED. No further petitions for rehearing or for rehearing en banc may be filed.

OPINION

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…

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 immediately, 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,…

447 F.3d 625 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. Amended May 9, 2006. 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: ANDREW J. KLEINFELD, HAWKINS, and SUSAN P. GRABER, Circuit Judges. ORDER 1 The opinion filed on December 16, 2005, is amended as follows: 2 On slip opinion page 16488, line 17 [ 431 F.3d 692, 696 ], beginning with "Also, because...." and ending on page 16489, line 6 [ 431 F.3d at 697 ], " Haack, 403 F.3d at 1003." delete and replace with the following: 3 Thus, if the sentence imposed resulted from an incorrect application of the Sentencing Guidelines, 1 and the error was not harmless, ordinarily we will…