United States v. Hemby-Brown , 233 F. App'x 328 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4722
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHONATE HEMBY-BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan, Chief
District Judge. (5:04-cr-00026-FL-2)
Submitted: June 25, 2007 Decided: July 16, 2007
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Walter A. Schmidlin, III, ANDERSON, JONES & GENGO, PLLC, Raleigh,
North Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shonate Hemby-Brown appeals from her fifty-month sentence
imposed after we remanded for resentencing in accordance with
United States v. Booker, 543 U.S. 220 (2005), and United States v.
Hughes, 401 F.3d 540 (4th Cir. 2005). She contends that, after
Booker, the district court was prohibited from imposing sentencing
enhancements where the factual findings supporting the enhancements
were not charged in the indictment and found by a jury beyond a
reasonable doubt. She also challenges the factual findings
supporting the enhancements, asserting that they were unsupported
and that the loss amount determined for sentencing differed from
the amount determined for restitution. Finding no error, we
affirm.
Hemby-Brown argues that the district court violated her
Sixth Amendment rights by enhancing her sentence based on factual
findings that were not submitted to the jury and found beyond a
reasonable doubt. This is incorrect. Rather, as directed by this
court on remand and by Hughes, 401 F.3d at 546, the district court
first determined the appropriate sentencing range under the
Sentencing Guidelines, making all factual findings appropriate for
that determination. Hughes, 401 F.3d at 546. The court then
considered the resulting sentencing range and the sentencing
factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007), and
imposed sentence. Contrary to Hemby-Brown’s contentions, the
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district court was authorized--indeed directed--to make the factual
findings as it did.
Hemby-Brown also challenges the reasonableness of the
findings that increased her offense level and thus her sentence,
asserting that they were not supported by the evidence.
Specifically, she contends that there was insufficient evidence to
support the amount of loss determination, the finding that there
were ten or more victims of the offense, and the amount of
restitution. Because these issues are raised for the first time in
this appeal, we review for plain error. United States v. Olano,
507 U.S. 725, 734 (1993); United States v. White, 405 F.3d 208, 215
(4th Cir. 2005). We find that the amount of loss was foreseeable to
Hemby-Brown, and that the district court’s findings as to the
amount of loss, the number of victims, and the use of
identification of another person in the creation of identification
documents are supported by the record and the enhancements were
properly applied. Thus, there was no plain error in the
application of the sentencing enhancements. Id.Lastly, Hemby-Brown asserts that the district court’s
determination of the loss amounts was unreasonable, because the
amount of loss used to compute the increase to her sentence
differed from the amount of loss used to determine restitution.
Different standards and different considerations govern the
determination of intended loss for determination of the Sentencing
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Guidelines range and actual loss for purposes of restitution.
Compare U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n.3(A)
(2002), with 18 U.S.C.A. § 3663A(b)(1) (West 2000 & Supp. 2007).
The district court did not plainly err in computing these amounts.
See Olano, 507 U.S. at 731-32.
Because the district court properly applied the
Guidelines as advisory and imposed a sentence within the
appropriately calculated Guideline range, we find that the sentence
is reasonable. See United States v. Green, 436 F.3d 449, 457 (4th
Cir.) (“[A] sentence imposed within the properly calculated
[g]uidelines range . . . is presumptively reasonable.”) (internal
quotation marks and citation omitted), cert. denied, 126 S. Ct.
2309 (2006); see also Rita v. United States, 551 U.S. , No. 06-
5754, at pp. 7-16 (U.S. June 21, 2007) (slip copy) (upholding the
application of rebuttable presumption of reasonableness of a within
Guidelines sentence). Accordingly, we affirm Hemby-Brown’s
sentence. 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
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