US v. Tammy Henderson, No. 08-4380 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4380 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TAMMY HENDERSON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. G. Ross Anderson, Jr., District Judge. (7:07-cr-01206-GRA-1) Submitted: October 22, 2008 Decided: November 24, 2008 Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. David W. Plowden, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. David Calhoun Stephens, Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tammy Henderson appeals the district court s judgment entered pursuant to her guilty plea to conspiracy to make and possess counterfeit securities, in violation of 18 U.S.C. § 513 (2000). Counsel for Henderson filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he asserts there are no meritorious issues for appeal, but asks this court to review whether the district court committed plain error in determining Henderson s sentence. Henderson filed a pro se supplemental brief in which she asserts a number of errors in her presentence report Guidelines range. ( PSR ) and the resulting Sentencing Following Finding no error, we affirm. United States v. Booker, 543 U.S. 220 (2005), a district court must engage in a multi-step process at sentencing. First, it must calculate the appropriate advisory Guidelines range. It must then consider the resulting range in conjunction with the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) and determine an appropriate sentence. Gall v. United States, 128 S. Ct. 586, 596 (2007). the district discretion. court s imposition the a sentence for abuse of Id. at 597; see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). that of We review district court This court must first ensure committed no significant procedural error, such as failing to calculate (or improperly calculating) 2 the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence--including an explanation for any deviation from the Guidelines range. Gall, 128 S. Ct. at 597. If there are no procedural errors, we then consider the substantive reasonableness of the sentence. Id. Substantive reasonableness review entails taking into account the totality of the circumstances, including the extent of any variance from the Guidelines range. Pauley, 511 F.3d at 473 (internal quotation marks and citation omitted). Further, this court may presume a sentence within the Guidelines range to be reasonable. exercise of Id. Mere disagreement with the district court s sentencing discretion does not permit substitute our judgment for that of the lower court. 473-74. us to Id. at Even if we would have reached a different sentencing result on our own, this fact alone is insufficient to justify reversal of the district court. Id. at 474 (quoting Gall, 128 S. Ct. at 597). Following the probation officer s preparation of the PSR, Henderson objected to the calculation of the intended loss amount, as well as to the inclusion of a two-level offense level enhancement for possession or use of device-making equipment, pursuant to U.S. Sentencing 3 Guidelines Manual ( USSG ) § 2B1.1(10)(A)(i) (2007), and a two level enhancement for Henderson s role as a leader, manager, or supervisor, pursuant to USSG § 3B1.1(c). At the sentencing hearing, Henderson indicated that all of the objections had been resolved with the Government, as the parties agreed that the two-level enhancement for possession removed, or resulting Sentencing use in Guidelines of a device-making total range of offense 24 to equipment level 30 of should ten months. be and a Henderson received a 30-month sentence. In her pro se brief, Henderson asserts that the PSR used by the district court at sentencing did not reflect the removal of the enhancement for possession or use of device- making equipment and that, as a result, she received a harsher sentence based on this allegation of white-collar thievery. However, there is no indication in the record that Henderson received brought a to sentencing. longer the sentence court s Pursuant due to attention to Fed. an and R. enhancement was Crim. that withdrawn P. prior 32(i)(1)(C), was to the district court properly permitted the parties to comment on the findings in the PSR and to notify the court that the enhancement for device-making Guidelines equipment calculation and was erroneously should Henderson s claim is without merit. 4 be included removed. in the Accordingly, Henderson also contends the district court improperly calculated the intended loss amount and erroneously included a two level enhancement supervisor. for her role as a leader, manager, or While she originally objected to the PSR s findings in regards to these two issues, Henderson stated at sentencing that those objections had been resolved with the Government. Accordingly, with no disputed issues presented at the sentencing hearing, the district court properly accepted undisputed See Fed. R. Crim. P. portions of the PSR as findings of fact. 32(i)(3)(A). the Because Henderson failed to raise any objections to the PSR, the district court did not err in determining the intended loss amount or imposing the leadership enhancement without requiring the Government to prove the underlying facts. Finally, in her Anders brief, Henderson contends that she received an unreasonable sentence. At the sentencing hearing, the district court appropriately treated the Guidelines as advisory, considered the relevant factors under § 3553(a), and sentenced Henderson Guidelines range. her sentence is within the properly calculated Because Henderson has failed to demonstrate either procedurally or substantively unreasonable, we find that the sentence imposed by the district court was reasonable and should be affirmed. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. 5 We therefore affirm the district court s judgment. requires that counsel inform his client, in This court writing, of her right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. was served on Counsel s motion must state that a copy thereof the client. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6

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