United States v. Kimberley DeMata ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4193
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KIMBERLEY J. DEMATA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Timothy M. Cain, District Judge.
(6:14-cr-00201-TMC-1)
Submitted: September 29, 2015 Decided: October 19, 2015
Before GREGORY, SHEDD, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lora Blanchard, Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:
Kimberley J. DeMata appeals from her conviction and
37-month sentence entered pursuant to her guilty plea to
conspiracy to defraud the IRS. On appeal, DeMata’s counsel has
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 DeMata’s sentence was unreasonable.
Neither the Government nor DeMata has filed a brief. After an
examination of the entire record, we affirm.
Although DeMata asserts that her sentence is unreasonable,
she offers no specific reasoning. We review a defendant’s
sentence “under a deferential abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 41 (2007). Under this
standard, a sentence is reviewed for both procedural and
substantive reasonableness. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
factors, and sufficiently explained the selected sentence.
Gall, 552 U.S. at 49-51.
If a sentence is free of “significant procedural error,” we
then review it for substantive reasonableness, “tak[ing] into
account the totality of the circumstances.” Id. at 51. “Any
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sentence that is within or below a properly calculated
Guidelines range is presumptively reasonable.” United States v.
Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421 (2014). Such a presumption can only be rebutted by a
showing that the sentence is unreasonable when measured against
the § 3553(a) factors. Id.
Here, the district court gave an individualized assessment
of DeMata’s conduct. The district court entertained DeMata’s
arguments for a probationary sentence, even if it did not
specifically state it was rejecting the arguments. Moreover,
the court explicitly stated that it considered all the statutory
factors and, in fact, examined several factors individually in
depth, demonstrating “reasoned decisionmaking” sufficient to
support the sentence. United States v. Carter, 564 F.3d 325,
329 (4th Cir. 2009). Thus, we conclude that DeMata’s
within-Guidelines sentence was not unreasonable.
In accordance with Anders, we have reviewed the entire
record in this case for meritorious issues and have found none.
Accordingly, we affirm. This court requires that counsel inform
DeMata in writing of her right to petition the Supreme Court of
the United States for further review. If DeMata requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave
to withdraw from representation. Counsel's motion must state
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that a copy thereof was served on DeMata. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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