Justia Professional Malpractice & Ethics Opinion Summaries

Appellant, the finance officer for the Standing Rock Housing Authority of the Standing Rock Sioux Tribe, pleaded guilty to theft concerning programs receiving federal funds and was sentenced to the statutory maximum of 120 months imprisonment. At issue was whether the district court committed procedural error when it departed upwards from the advisory U.S. Sentencing Guidelines range, U.S.S.G. 4A1.3, and when it considered ethnicity and other improper factors during sentencing. Also at issue was whether the sentencing was substantively unreasonable. The court held that the district court did not engage in impermissible double counting by departing upwards to criminal history category IV where the district court discussed the nature and circumstances of the offense and the history and characteristics of appellant, the need to avoid unwarranted sentencing disparities between similar defendants, and the need to provide restitution for the victims. The court also held that the sentence was substantively reasonable where any comments regarding race or national origin were not offered as an explanation for imposing sentence but reflected the district court's disagreement with appellant's counsel that the Guidelines were "fair" and that a Guidelines sentence of 70 to 87 months imprisonment was appropriate as a matter of law; where the district court's statements expressed its frustration about its inability to order restitution for an amount closer to the total loss of money rather than a comment on appellant's socio-economic status; and where the district court did not use appellant's lack of an addiction to justify the sentence, but rather to describe his state of mind as he carried out the embezzlement scheme.