United States v. Lena Gant

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 11, 2013
• Docket: 12-4769
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12-4769

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LENA GANT,

Defendant - Appellant.

No. 12-4946

SHANNON FISHBURNE,

Appeals from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:12-cr-00119-DCN-1; 2:12-cr-00119-DCN-3)

Submitted: May 14, 2013 Decided: July 11, 2013

Before WILKINSON, KING, and AGEE, Circuit Judges. No. 12-4769 affirmed in part, vacated in part, and remanded; No. 12-4946 affirmed by unpublished per curiam opinion.

J. Robert Haley, Assistant Federal Public Defender, Charleston, South Carolina; Timothy Kirk Truslow, THE TRUSLOW LAW FIRM, LLC, North Myrtle Beach, South Carolina, for Appellants. Dean Hodge Secor, Assistant United States Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Lena Gant and Shannon Fishburne pled guilty, pursuant

to plea agreements, to conspiracy to defraud the United States,

in violation of 18 U.S.C. § 371 (2006). The court sentenced

Gant to twenty-seven months’ imprisonment and five years’

supervised release and imposed $133,175.25 in restitution. The

court sentenced Fishburne to eighteen months’ imprisonment and

three years’ supervised release and imposed $39,196.35 in

restitution. On appeal, counsel have 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 the

district court complied with Fed. R. Crim. P. 11 in accepting

Appellants’ pleas and whether Appellants’ sentences are

reasonable. Appellants were advised of their right to file pro

se supplemental briefs, but they did not do so. We affirm in

part, vacate in part, and remand for resentencing.

Because Appellants did not move in the district court

to withdraw their guilty pleas, our review of their Rule 11

hearings is for plain error. United States v. Martinez, 277

F.3d 517, 525-26 (4th Cir. 2002); see United States v.

Massenburg, 564 F.3d 337, 343 (4th Cir. 2009) (providing plain

error standard in context of guilty pleas). After reviewing the

Rule 11 colloquies pursuant to Anders, we conclude that the

district court substantially complied with the requirements of

3 Rule 11, failing only to inform Appellants of their right to

persist in their pleas of not guilty, and that this minor

omission did not affect Appellants’ substantial rights. See

Massenburg, 564 F.3d at 344 (holding that “mere existence of an

error cannot satisfy the requirement that [defendants] show that

[their] substantial rights were affected”); United States v.

Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (holding that

district court’s failure to provide requisite information in

Rule 11 hearing is harmless error where defendant was advised of

omitted information through another means before hearing). We

therefore affirm Appellants’ convictions.

Our review of Gant’s term of supervised release,

however, reveals that it is not free from plain error. See

United States v. Hernandez, 603 F.3d 267, 273 (4th Cir. 2010)

(providing plain error standard in context of sentencing). The

offense of conspiracy to defraud the United States carries a

statutory maximum of five years’ imprisonment, making it a Class

D felony. 18 U.S.C. §§ 371, 3559(a)(4) (2006). The maximum

term of supervised release for a Class D felony is three years.

18 U.S.C. § 3583(b)(2) (2006). Accordingly, the district court

plainly erred by sentencing Gant to a five-year term of

supervised release, exceeding the statutory maximum. Thus, we

vacate Gant’s five-year term of supervised release and remand

for resentencing.

4 We review the remainder of Gant’s sentence and

Fishburne’s sentence for reasonableness under a deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S.

38, 41 (2007). This review requires consideration of both the

procedural and substantive reasonableness of the sentence. Id.

at 51. After reviewing the sentencing transcript pursuant to

Anders, we conclude that the sentences are procedurally

reasonable, as the district court properly calculated

Appellants’ applicable Guidelines ranges, gave each party the

opportunity to present argument and to allocute, considered the

18 U.S.C. § 3553(a) (2006) factors, and sufficiently explained

the selected sentences. See Gall, 552 U.S. at 49-51 (listing

factors for court to consider when determining procedural

reasonableness). Moreover, we conclude that Appellants’ within-

Guidelines sentences, apart from Gant’s term of supervised

release, are substantively reasonable. See United States v.

Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010) (holding

that, on appeal, within-Guidelines sentences are presumptively

reasonable); United States v. Montes-Pineda, 445 F.3d 375, 379

(4th Cir. 2006) (holding that defendants bear burden of showing

“that the sentence[s are] unreasonable when measured against the

§ 3553(a) factors” (internal quotation marks omitted)). Thus,

we affirm Fishburne’s sentence and affirm the remainder of

Gant’s sentence.

5 In accordance with Anders, we have reviewed the record

in this case and have found no other meritorious issues for

appeal. We therefore affirm Appellants’ convictions and

Fishburne’s sentence. We vacate Gant’s five-year term of

supervised release and remand for resentencing and affirm Gant’s

sentence in all other respects. This court requires that

counsel inform their clients, in writing, of the right to

petition the Supreme Court of the United States for further

review. If either 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 his client.

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.

No. 12-4769 AFFIRMED IN PART, VACATED IN PART, AND REMANDED No. 12-4946 AFFIRMED