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United States v. O'Brien

United States Court of Appeals, First Circuit

August 31, 2017

UNITED STATES OF AMERICA, Appellee,
v.
JANE E. O'BRIEN, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. Nathaniel M. Gorton, U.S. District Judge

          Inga L. Parsons on brief for appellant.

          Carmen M. Ortiz, United States Attorney, and Stephen E. Frank, Assistant United States Attorney, on brief for appellee.

          Before Lynch, Lipez, and Barron, Circuit Judges

          LIPEZ, Circuit Judge.

         Jane E. O'Brien, a professional investment adviser, engaged in a long-running scheme to defraud several of her clients -- mostly elderly women who relied on her financial advice and friendship -- out of their life savings. This scheme was eventually uncovered, and she pled guilty -- in two separate cases -- to securities fraud, investment adviser fraud, wire fraud, and mail fraud. O'Brien now appeals her sentence on both procedural and substantive grounds. Specifically, she challenges the district court's imposition of a two-level obstruction of justice enhancement and a two-level vulnerable victim enhancement, as well as contending that the length of her sentence was substantively unreasonable. Finding no basis for undoing the district court's well-reasoned sentencing decisions, we affirm.

         I. Background

         We provide here only a brief synopsis of the essential facts of this case, reserving additional detail for the analysis that follows. Because this appeal follows a guilty plea, we draw the relevant facts from the plea agreement, the change-of-plea colloquy, the undisputed portions of the presentence investigation report ("PSR"), and the transcript of the disposition hearing. United States v. Rivera-González, 776 F.3d 45, 47 (1st Cir. 2015).

         Over approximately eighteen years, O'Brien -- a registered securities broker who was employed at various times by two large brokerage firms (Merrill Lynch and Smith Barney) --persuaded some of her clients to withdraw money from their brokerage accounts and give the money to her personally to invest on their behalf. After gaining control of her client's money, however, O'Brien did not make the promised investments. Instead, she used her clients' money to pay personal expenses or to repay money given to her by other clients. To perpetuate and conceal the fraud, she made lulling payments, forged signatures, and repeatedly lied to her clients about the state of their investments.

         In April 2012, after one of her clients filed a complaint with the Financial Industry Regulatory Authority, O'Brien, through her attorney, met with an assistant United States Attorney and disclosed that she had misappropriated funds from one of her clients, RC.[1] During this meeting, O'Brien also provided the government with the names of other former clients from whom she had improperly obtained money. Two months after this meeting, O'Brien pled guilty to one count of securities fraud, under 15 U.S.C. § 78j(b), based on her defrauding of RC. On May 30, 2013, O'Brien was sentenced to thirty-three months in prison on this count. O'Brien raises no claims of error specific to this sentence.

         While O'Brien was in custody awaiting sentencing on the 2012 case, she was also charged in an eight-count indictment with investment fraud, wire fraud, and mail fraud for conduct related to three other former clients: PN, EG, and KD. O'Brien subsequently pled guilty -- without a plea agreement -- to all but one of the counts charged in the indictment. At a hearing on August 6, 2015, the court sentenced O'Brien to forty-five months of imprisonment, to be served consecutively to the thirty-three-month term of imprisonment from the 2012 case. Because O'Brien's cases were aggregated for purposes of calculating the applicable guidelines sentencing range ("GSR"), the district court's imposition of a consecutive sentence of forty-five months brought O'Brien's total sentence (seventy-eight months) to the bottom end of the advisory GSR. O'Brien timely appealed.

         II. Discussion

         O'Brien challenges the district court's imposition of two, two-level sentencing enhancements: the first, for obstruction of justice, under U.S.S.G. § 3C1.1; the second, a vulnerable-victim enhancement, under U.S.S.G. § 3A1.1(b)(1). She also contends that her sentence was substantively unreasonable. We address each argument in turn, reviewing O'Brien's preserved claims of error under our "multifaceted" abuse-of-discretion standard, whereby "we apply clear error review to factual findings, de novo review to interpretations and applications of the guidelines, and abuse of discretion review to judgment calls." United States v. Cox, 851 F.3d 113, 119 (1st Cir. 2017) (quoting United States v. Nieves-Mercado, 847 F.3d 37, 42 (1st Cir. 2017)).

         A. Obstruction of Justice Enhancement

         Under U.S.S.G. § 3C1.1, a defendant's offense level is increased by two levels if "(1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant's offense of conviction and any relevant conduct; or (B) a closely related offense." Covered conduct includes, among other things, "threatening, intimidating, or otherwise unlawfully influencing a . . . witness . . . or attempting to do so." Id. cmt. n.4(A).

         The conduct that led to this enhancement involved payments O'Brien made or promised to make to some victims during the government's investigation of her crimes, as well as related conversations O'Brien had with an attorney for one of her victims. Specifically, between April and June 2013, O'Brien -- who was in prison at the time, having been remanded pending sentencing in the 2012 case for violating her release conditions -- directed her brother to make payments to PN and EG. From prison, O'Brien also had several phone calls with PN's attorney, Michael Faherty, in which she tried to convince Faherty that the money given to her by PN was a series of ...


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