US v. Lena Gant, No. 12-4769 (4th Cir. 2013)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on July 11, 2013.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4769 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LENA GANT, Defendant - Appellant.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 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHANNON FISHBURNE, Defendant - Appellant. 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: Before WILKINSON, KING, and AGEE, Circuit Judges. July 11, 2013 No. 12-4769 affirmed in part, vacated in part, and remanded; No. 12-4946 affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Lena Gant and Shannon Fishburne pled guilty, pursuant to plea agreements, to conspiracy to defraud the United States, in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). Gant to twenty-seven months The court sentenced imprisonment and five years supervised release and imposed $133,175.25 in restitution. The court sentenced Fishburne to eighteen months imprisonment and three years restitution. supervised release and imposed $39,196.35 in 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 reasonable. Appellants were advised of their right to file pro se supplemental briefs, but they did not do so. sentences are 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 2002); 517, 525-26 (4th Cir. see United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009) (providing plain error standard in context of guilty pleas). Rule 11 colloquies pursuant to Anders, we After reviewing the 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] Goins, substantial 51 district F.3d rights 400, court s were 402-03 failure to affected ); (4th Cir. provide United 1995) requisite States (holding v. that 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). plainly erred by sentencing Accordingly, the district court Gant to a five-year supervised release, exceeding the statutory maximum. term of Thus, we vacate Gant s five-year term of supervised release and remand for resentencing. 4 We review remainder sentence Fishburne s the for reasonableness abuse-of-discretion standard. 38, 41 (2007). of Gant s sentence under a and deferential Gall v. United States, 552 U.S. 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 reasonable, as that the the sentences district court are procedurally 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. factors for court reasonableness). Guidelines to See Gall, 552 U.S. at 49-51 (listing consider when determining Moreover, we conclude that Appellants within- sentences, apart from Gant s release, are substantively reasonable. Mendoza-Mendoza, procedural 597 F.3d 212, 217 (4th term of supervised See United States v. 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)). we affirm Fishburne s sentence Gant s sentence. 5 and affirm the Thus, remainder of In accordance with Anders, we have reviewed the record in this case and have found no other meritorious issues for appeal. We Fishburne s therefore sentence. affirm We Appellants vacate Gant s convictions five-year and term of supervised release and remand for resentencing and affirm Gant s sentence counsel in all inform other their petition the If either clients, Supreme review. respects. Court court requires in writing, of the of requests This United States that a petition the right for be that to further filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on his client. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. No. 12-4769 AFFIRMED IN PART, VACATED IN PART, AND REMANDED No. 12-4946 AFFIRMED 6
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