United States v. Greiner

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 25, 2001
• Docket: 01-40163
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40163 Conference Calendar

UNITED STATE OF AMERICA,

Plaintiff-Appellee,

versus

SYLVIA FAYE GREINER,

Defendant-Appellant.

--------------------

Appeal from the United States District Court for the Eastern District of Texas USDC No. 3:00-CR-5-ALL

-------------------- October 25, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Sylvia Faye Greiner appeals from her conviction of

conspiring to make or present a false claim. She contends that

she received ineffective assistance of counsel; that the evidence

was insufficient to support her conviction; that 18 U.S.C.

§ 1006, the statute governing one of the substantive offenses

underlying the charge of conviction, is void for vagueness; that

her sentence violated Apprendi v. New Jersey, 530 U.S. 466

(2000), because the amount of loss on which her guideline

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-40163 -2-

sentencing level was based was not alleged in the charging

information; and that the Government failed to prove the amount

of loss on which her guideline sentencing level was based.

Greiner lists the ways in which she believes counsel was

ineffective, but she does not allege any specific facts

supporting her ineffective-assistance contentions. Greiner has

failed to brief ineffective assistance for appeal. Brinkmann v.

Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987). Greiner seeks to incorporate by reference a district-

court pleading to make her argument that the evidence was

insufficient to support her conviction; she may not incorporate

portions of the district-court reference into her brief. Yohey

v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Moreover, the

issue is facially frivolous because Greiner pleaded guilty.

Title 18 U.S.C. § 1006 is not void for vagueness. United

States v. Kehoe, 573 F.2d 335, 339 (5th Cir. 1978). Greiner has

failed to show any error, plain or otherwise, regarding her void-

for-vagueness contention, which she raises for the first time on

appeal.

Apprendi is inapplicable to cases in which a sentence is

enhanced within a statutory sentencing range. United States v.

Keith, 230 F.3d 784, 786-87 (5th Cir. 2000), cert. denied, 121 S.

Ct. 1163 (2001). Greiner has failed to show any error, plain or

otherwise, regarding her Apprendi contention, which she raises

for the first time on appeal. No. 01-40163 -3-

Greiner stipulated to the loss amount on which her sentence

was based in her plea agreement. She cannot show error based on

that amount of loss.

AFFIRMED.