US v. Stacy Oliver, No. 10-4127 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4127 UNITED STATES OF AMERICA, Plaintiff Appellee, v. STACY LYNN OLIVER, Defendant Appellant. No. 10-4132 UNITED STATES OF AMERICA, Plaintiff Appellee, v. STACY OLIVER, Defendant Appellant. Appeals from the United States District Court for the District of South Carolina, at Greenville and Rock Hill. Henry M. Herlong, Jr., Senior District Judge. (6:09-cr-00781-HMH-1; 0:03-cr-00358-HMH-1) Submitted: November 12, 2010 Decided: January 4, 2011 Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Charles T. Brooks, III, THE BROOKS LAW OFFICES, LLC, Sumter, South Carolina; John H. Hare, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, William J. Watkins, Jr., Assistant United States Attorney, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In these consolidated cases, Stacy Lynn Oliver appeals the revocation of supervised release on a 2004 conviction of wire fraud, 18 U.S.C.A. § 1343 (West Supp. 2010), and a new, thirty-seven-month sentence imposed on his guilty plea to unauthorized use of a credit card, in violation of 18 U.S.C. § 1029(a)(2) (2006). Oliver raises three claims challenging the unauthorized use conviction; he raises no issues concerning the revocation of supervised release. Oliver s supervised We affirm in both appeals. release conviction commenced in May 2006. on his 2004 wire fraud In 2007, the probation office notified the district court that Oliver had violated the terms of his supervised release, but recommended taking until the pending state charges were adjudicated. no action Oliver was convicted and sentenced by North Carolina for those offenses, which included credit card fraud, in May 2008. In July 2009, Oliver was indicted in federal court for a single count of unauthorized unauthorized use conviction ). corpus ad prosequendum was use of credit cards ( the The same day, a writ of habeas issued to the North Carolina Department of Corrections, where Oliver had been serving his state sentence. Oliver was brought to the District of South Carolina and housed at Just Care, a private hospital facility that treats prisoners, in order to accommodate Oliver s need for 3 dialysis. While at Just Care, Oliver continued to engage in fraudulent financial transactions, defrauding both Just Care and TNB Card Services. Before trial, Oliver came to an oral agreement with the Government wherein Oliver agreed to plead guilty, and in exchange, the Government agreed that: First, it would not charge Oliver for the fraud committed at Just Care, but the amount of the fraud would be added to his restitution amount; second, the Government would not object to the sentence for his supervised release violation running concurrently with the sentence on the indictment; and third, if Oliver convinced the state to permit him to serve the remainder of his state sentence in federal custody, the Government would not object. The district court asked Oliver and his attorney whether that was the agreement as they understood it, and they both confirmed that it was. The district court ordered Oliver to pay restitution, and it imposed a sentence of twenty-four months imprisonment for Oliver s violation of the terms of his supervised release, to run concurrently with a thirty-seven-month Oliver s credit card fraud offense. sentence for The district court made clear that the sentence was to run consecutively with Oliver s state sentence. Oliver noted a timely appeal. Oliver argues that his sentence on the unauthorized use conviction was procedurally 4 unreasonable. This court reviews a sentence for reasonableness, applying a deferential abuse of discretion standard. 38, 51 (2007). Gall v. United States, 552 U.S. Our review requires consideration of both the procedural and substantive reasonableness of a sentence. United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). Id.; The first step requires that we determine whether the district court committed any significant procedural error, ensuring that the district court properly calculated the defendant s advisory Guidelines range, that it considered the factors enumerated in 18 U.S.C. § 3553(a) (2006) and any arguments presented by the parties, that assessment, imposed. it and based that the it sentence adequately on an individualized explained the sentence See Gall, 552 U.S. at 50-51; Lynn, 592 F.3d at 575; United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). In reviewing the substantive reasonableness, this court considers the totality of the circumstances, including the extent of any variance from the Guidelines range. Gall, 552 U.S. at 51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). reasonableness Oliver of his has not sentence, challenged and his the substantive within-Guidelines sentence is afforded an appellate presumption of reasonableness. See United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008). Oliver first asserts that the district court failed to consider his objections to the presentence report ( PSR ) for 5 the unauthorized reflects that attorney. use there conviction. was some The tension sentencing between hearing Oliver and his However, the district court did not err in failing to consider objections to the raised. Although Oliver PSR because stated that no he objections wanted to were file an objection to the PSR, he could not identify any objections in even the most general terms. Nor could Oliver s attorney point to any possible grounds for objection. Because the district court was not presented with any objections, and had no reason to believe that granting Oliver more time would yield any, it did not err in failing to consider objections to the PSR. * Next, state a Oliver sufficiently argues that the particularized district basis for court the failed sentence imposed because it failed to explain its denial of his request that his federal sentence run concurrently with his state sentence. While district judges must provide a particularized assessment justifying the sentence imposed in each case, they need not subsection. robotically United (4th Cir. 2006). tick States Moreover, v. when * through § 3553(a) s Johnson, 445 a judge F.3d decides every 339, 345 simply to We note that, even on appeal, Oliver has not identified any potential errors in the PSR, nor has he given any indication as to what his objections might have been. 6 apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation. Rita v. United States, 551 U.S. 338, 356 (2007); Lynn, 592 F.3d at 576. properly preserved claim of procedural error reversal, unless the error was harmless. is Id. subject A to The government can establish harmless error by showing that the error had no significant, injurious impact on the sentence. United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010). Here, the district court stated that it considered the § 3553(a) factors, considered the Guidelines as advisory, and concluded that the within-Guidelines sentence of thirty-seven months and payment of restitution satisfied the purposes of the statute. adopted The the district court Commission s own sentence is a proper sentence. The denial of district Oliver s made court request clear reasoning that that its the decision Guidelines See Rita, 551 U.S. at 357. also that adequately his concurrently with his state sentence. explained federal its sentence run The record suggests that Oliver either misrepresented or may not have accurately recalled the terms of the oral plea agreement to which he assented at his rearraignment. The possibility of the latter circumstance is among the reasons we have previously stated that it behooves the government to reduce all oral pleas to writing. States v. McQueen, 108 F.3d 7 64, 66 United (4th Cir. 1997). Nevertheless, this court enforces oral plea agreements. See United States v. Iaquinta, 719 F.2d 83, 84 n.2 (4th Cir. 1983). We are satisfied that the terms of the oral plea agreement, as reflected in the transcript of the rearraignment, are sufficiently clear and unambiguous, and that Oliver understood those terms when he entered the plea. Moreover, Oliver indicated when he entered his plea that he understood that the district court was not bound by the terms of the plea agreement. Therefore, this claim entitles Oliver to no relief. Finally, Oliver argues that his attorney was laboring under a conflict of interest because Oliver had not paid him, and that the district court erred in failing to hold a hearing to inquire into the possibility of a conflict of interest. The Sixth Amendment right to effective assistance of counsel includes a duty of loyalty by counsel that requires the attorney to Stephens v. remain Branker, free 570 from F.3d conflicts 198, 208 of interest. (4th Cir. 2009). However, where a defendant identifies the mere possibility of a conflict, that potential may not, in practice, contravene this duty of loyalty. show that his Id. attorney In order to prevail, a defendant must labored under an actual conflict interest that adversely affected the lawyer s performance. of Id. at 209. To establish the existence of an actual conflict of interest, Oliver must show that 8 [his] interests diverge[d] [from his attorney s] with respect to legal issue or to a course of action. a material factual or Id. (quoting Gilbert v. Moore, 134 F.3d 642, 652 (4th Cir. 1998) (en banc) (alterations in original)). On this record, Oliver has not established an actual conflict. A fee dispute does not ordinarily establish an actual conflict because courts presume that counsel will continue to execute [their] professional and ethical duty to zealously represent [their] client[s], notwithstanding the fee dispute. United States v. O Neil, 118 F.3d 65, 72 (2d Cir. 1997); see Caderno v. United (11th Cir. 2001) States, (finding 256 failure to F.3d pay 1213, counsel 1218-19 showed only possibility of conflict of interest, not actual conflict, though counsel s letters to defendant indicated his frustration at not being paid). Turning to Oliver s argument that the district court should have held a hearing to determine whether there was an actual conflict, the Supreme Court has required such an inquiry when the trial court knows or reasonably should know that a particular conflict exists. Cuyler v. Sullivan, 446 U.S. 335, 347 (1980). However, this is not to be confused with when the trial is court conflict. aware of a vague, unspecified possibility Mickens v. Taylor, 535 U.S. 162, 168-69 (2002). of In Mickens, the Supreme Court held that, even where a trial court 9 fails to inquire into a potential conflict of interest about which it knew or should reasonably have known, a defendant must still establish that counsel s performance. the conflict adversely affected his Id. at 170-73. Here, neither an actual conflict nor an adverse impact on Oliver s counsel appears conclusively from the record. See United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006) (noting ineffective assistance only cognizable on direct appeal when it appears conclusively from the record). adequate development of the record, Oliver s To allow for claim is more appropriately raised in a 28 U.S.C.A. § 2255 (West. Supp. 2010) United States v. Baptiste, 596 F.3d 214, 216-17 n.1 motion. (4th Cir. 2010). Accordingly, sentences. legal before affirm Oliver s convictions and We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 10
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