United States v. Kaylan Ellis

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 16, 2021
• Docket: 20-4436
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4436

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KAYLAN BROOKE ELLIS,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:19-cr-00588-WO-2)

Submitted: June 8, 2021 Decided: June 16, 2021

Before THACKER and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Eugene E. Lester III, SHARPLESS MCCLEARN LESTER DUFFY, PA, Greensboro, North Carolina, for Appellant. Anand P. Ramaswamy, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Kaylan Brooke Ellis pled guilty pursuant to a plea agreement to conspiracy to

commit wire fraud, in violation of 18 U.S.C. § 1349, and ten counts of wire fraud, in

violation of 18 U.S.C. § 1343. The district court calculated Ellis’ advisory ranges under

the U.S. Sentencing Guidelines Manual (2018) at 10 to 16 months’ imprisonment and 1 to

3 years of supervised release and sentenced her to concurrent terms of 12 months and 1

day in prison and concurrent terms of 3 years of supervised release. On appeal, Ellis’

attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that

there are no meritorious issues for appeal, but questioning whether Ellis’ prison and

supervised release sentences are reasonable. Although notified of her right to do so, Ellis

did not file a pro se supplemental brief. The Government did not file a response brief.

We affirm.

“We review a [criminal] sentence for reasonableness ‘under a deferential abuse-of-

discretion standard.’” United States v. McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (quoting

Gall v. United States, 552 U.S. 38, 41 (2007)). In conducting such review, we must first

ensure that the district court did not commit any “significant procedural error,” such as

“failing to calculate (or improperly calculating) the [Sentencing] Guidelines range, treating

the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting

a sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence.” United States v. Lymas, 781 F.3d 106, 111-12 (4th Cir. 2015) (quoting Gall,

552 U.S. at 51). When rendering a sentence, the district court must make an individualized

assessment based on the facts presented, state in open court the reasons supporting its

2 chosen sentence, and address the parties’ nonfrivolous arguments in favor of a particular

sentence and, if it rejects them, explain why in a manner allowing for meaningful appellate

review. United States v. Provance, 944 F.3d 213, 218 (4th Cir. 2019).

If the sentence is procedurally sound, we review the substantive reasonableness of

the sentence. Gall, 552 U.S. at 51. Substantive reasonableness review “takes into account

the totality of the circumstances to determine whether the sentencing court abused its

discretion in concluding that the sentence it chose satisfied the standards set forth in

§ 3553(a).” United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020) (internal quotation

marks omitted). Any sentence within a properly calculated Guidelines range is

presumptively substantively reasonable, and Ellis bears the burden of demonstrating that

the sentence is unreasonable when measured against the § 3553(a) factors. United States v.

White, 810 F.3d 212, 230 (4th Cir. 2016).

After review of the record, we conclude that the district court properly calculated

Ellis’ Guidelines prison range, gave counsel an adequate opportunity to argue for an

appropriate sentence, properly heard allocution from Ellis, and considered counsel’s

argument and Ellis’ allocution, the advisory Guidelines range, and the § 3553(a) factors.

The court determined that the prison sentence of 12 months and 1 day was warranted based

on the nature and circumstances of Ellis’ offense conduct and her rehabilitative history and

the needs for the sentence imposed to reflect the seriousness of her offenses, to afford

adequate deterrence, and to protect the public, see 18 U.S.C. § 3553(a)(1), (2)(A)-(C). The

district court’s explanation was sufficient to support the imposition of this term, and Ellis

does not point to any factors to overcome the presumption of reasonableness afforded to it.

3 Turning to the reasonableness of Ellis’ three-year term of supervised release,

because this issue was not raised before the district court, our review is for plain error only.

United States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015). “To satisfy plain

error review, the defendant must establish that: (1) there is a sentencing error; (2) the error

is plain; and (3) the error affects h[er] substantial rights.” Id.

Ellis’ convictions were for Class C felonies, and, thus, the authorized terms of

supervised release that could be imposed as part of her sentences for these offenses were

not more than three years per count. 18 U.S.C. §§ 3559(a)(3), 3583(b)(2). The district

court properly calculated Ellis’ supervised release Guidelines range and, after hearing

argument and Ellis’ allocution, did not plainly err in its consideration of the supporting

§ 3553(a) factors. The court’s comments sufficiently reveal the basis for the term it

imposed, and Ellis proffers no argument suggesting that the within-Guidelines supervised

release term was unreasonable when measured against the § 3553(a) factors. She thus fails

to establish plain error in her three-year term of supervised release.

In accordance with Anders, we also have reviewed the remainder of the record and

have found no meritorious issues for appeal. We therefore affirm the criminal judgment.

This court requires that counsel inform Ellis, in writing, of the right to petition the Supreme

Court of the United States for further review. If Ellis requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then counsel may move in this

court for leave to withdraw from representation. Counsel’s motion must state that a copy

thereof was served on Ellis.

4 We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED