US v. Jesse Hamilton, No. 13-4190 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4190 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JESSE J. HAMILTON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Anderson. Mary G. Lewis, District Judge. (8:12-cr-00703-MGL-4) Submitted: July 19, 2013 Before MOTZ and Circuit Judge. DAVIS, Decided: Circuit Judges, and August 2, 2013 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South Carolina, for Appellant. William Jacob Watkins, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jesse J. Hamilton appeals his conviction and sentence of twelve months and one day of imprisonment, imposed following his guilty plea to conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349 (2006). Hamilton s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for review but questioning whether the district court (1) fully complied with Fed. R. Crim. P. 11 in conducting Hamilton s plea colloquy, and (2) clearly erred in attributing to Hamilton a loss amount of more than $5000 but less than or equal to $10,000 calculating his offense level under the Guidelines. when Hamilton was advised of his right to file a pro se supplemental brief but has not done so. brief. The Government has declined to file a response Finding no reversible error, we affirm. Counsel first questions the sufficiency of the plea hearing conducted by the district court. plea, the informs trial the court defendant must of, conduct and a Before accepting a colloquy determines that in the which it defendant comprehends, the nature of the charge to which he is pleading guilty, any mandatory minimum penalty, the maximum possible penalty he faces, and the rights he is relinquishing by pleading guilty. Fed. R. Crim. P. 11(b); United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The court also must ensure that 2 the plea is voluntary, supported by an independent factual basis, and not the result of force, threats, or promises not contained in the plea agreement. Fed. R. Crim. P. 11(b)(2), (3). Because Hamilton did not seek to withdraw his plea in the district court or timely object to any alleged error, we review the plea colloquy for plain error. Rule 11 United States v. Massenburg, 564 F.3d 337, 342 (4th Cir. 2009). To establish plain error, Hamilton must show that (1) the district court erred, (2) the error was plain, and (3) the error affects his substantial rights. 732 (1993). United States v. Olano, 507 U.S. 725, In the guilty plea context, an error affects a defendant s substantial rights if he demonstrates a reasonable probability error. that he would not have Massenburg, 564 F.3d at 343. pled guilty but for the Even if these requirements are met, we will exercise our discretion to correct such error only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Olano, 507 U.S. at 732 (internal quotation marks and alteration omitted). Our review of the plea hearing reveals that the district court substantially complied with Rule 11 in conducting the plea colloquy and that any minor omissions by the court did not affect Hamilton s substantial rights. The available record does not support Hamilton s assertion that he did not comprehend 3 the charge to which he pled. Thus, we conclude the district court did not plainly err in finding Hamilton s plea knowing and voluntary. Counsel next questions whether the district court erred in calculating the amount of loss attributed to Hamilton to establish determinations his Guidelines made during range. sentencing Typically, are reviewed factual for clear error. United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). However, because Hamilton did not object to the loss calculation in the district court, we review the issue for plain error. Id.; see Olano, 507 U.S. at 732 (standard). When calculating a Guidelines range applicable to a fraud offense, the government is required to establish amount of loss by a preponderance of the evidence. the See United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003). [T]he court need only make a reasonable estimate of the loss. United States v. Cloud, 680 F.3d 396, 409 (4th Cir.) (internal quotation marks omitted), cert. denied, 133 S. Ct. 218 (2012); USSG § 2B1.1 cmt. n.3(C). Generally, loss is the greater of actual loss or intended loss. A report has information articulate defendant seeking an affirmative in the the USSG § 2B1.1 cmt. n.3(A). to duty presentence reasons why the 4 challenge to make report facts a is the presentence showing that unreliable, contained therein the and are untrue or inaccurate. 162 (4th Cir. 1990). information findings inquiry of is or United States v. Terry, 916 F.2d 157, In the absence of objections showing the inaccurate, the the [presentence explanation. court report] Id. is free without (internal to adopt more the specific quotation marks omitted); see Fed. R. Crim. P. 32(i)(3)(A) (recognizing that, at sentencing, district court may accept any undisputed portion of the presentence report as a finding of fact ). Here, the court s loss calculation was based on a stipulation between the parties proffered during the sentencing hearing. Because Hamilton concurred in the Government s request for amendment an to the Guidelines range adopting this stipulation, any sentencing error based on the application of this loss amount is not properly before us. See United States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997) ( [A] court cannot be asked by counsel to take a step in a case and later be convicted of error, because it has complied with such request. (internal quotation marks omitted)). In any event, because Hamilton did not object to the loss calculations provided in the presentence report, the court was free calculations in imposing Hamilton s sentence. to accept these Given that these original loss calculations established a much higher Guidelines range than that derived from the parties agreement, any error 5 in accepting the lower, agreed-upon calculation did not affect Hamilton s substantial rights. See Cloud, 680 F.3d at 411. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court s judgment. This court requires that counsel inform Hamilton, in writing, of the right to petition the Supreme Court of the United States for further review. If Hamilton requests that a petition be 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 Hamilton. 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. AFFIRMED 6

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