US v. Rebecca Faircloth, No. 13-4240 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4240 UNITED STATES OF AMERICA, Plaintiff Appellee, v. REBECCA FOWLER FAIRCLOTH, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:12-cr-00058-GMG-DJJ-4) Submitted: October 10, 2013 Decided: October 21, 2013 Before NIEMEYER, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. William T. Rice, Martinsburg, West Virginia, for Appellant. Stephen Donald Warner, Assistant United States Attorney, Elkins, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Rebecca Fowler Faircloth appeals the fifty-seven-month sentence imposed following her guilty plea to distribution of cocaine base, Faircloth s in violation counsel has of filed 21 a U.S.C. brief § 841(a)(1) pursuant to (2006). Anders v. California, 386 U.S. 738 (1967), concluding that there are no meritorious issues for appeal but questioning whether Faircloth s 1996 state conviction for uttering for which she was sentenced to one to ten years imprisonment was improperly counted in determining her criminal history score. Faircloth was notified of her right to file a supplemental pro se brief but has not done so. Following careful review of the record, we affirm. Because Faircloth did not object at sentencing to the assessment of criminal history points conviction, our review is for plain error. Olano, 507 U.S. 725, 731-32 (1993). for her uttering See United States v. A defendant receives three criminal history points for a prior sentence that exceeded one year and one month of imprisonment that was imposed within fifteen years of the defendant s commencement of the instant offense. U.S. Sentencing Guidelines § 4A1.2(e)(1) (2012); see USSG § 4A1.1(a). Manual ( USSG ) Also counted is any such sentence, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period. 2 USSG § 4A1.2(e)(1). establishes Faircloth following that, was her The within the incarcerated uttering unrefuted presentence report look-back period, the sentence imposed We therefore reject fifteen-year pursuant to conviction. Faircloth s challenge to the district court s calculation of her criminal history score. In accordance with Anders, we have reviewed the record and have found no meritorious issues. district court s judgment. inform Faircloth, Supreme Court Faircloth of This court requires that counsel in writing, of the United States requests that We therefore affirm the a the right to for further be filed, petition petition the review. If but counsel believes that such a petition would be frivolous, then counsel may move in representation. this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Faircloth. 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 3
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