United States v. Kimberly Jennifer Owens , 706 F. App'x 807 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4449
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIMBERLY JENNIFER OWENS,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Greenville. Timothy M. Cain, District Judge. (6:16-cr-00522-TMC-1)
Submitted: December 19, 2017 Decided: December 21, 2017
Before SHEDD, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lora Blanchard, Assistant Federal Public Defender, Greenville, South Carolina, for
Appellant. Elizabeth Jeanne Howard, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kimberly Jennifer Owens pled guilty to bank robbery, in violation of 18 U.S.C.
§ 2113(a) (2012). The district court sentenced Owens to 57 months’ imprisonment, at the
top of her advisory Sentencing Guidelines range. Pursuant to Anders v. California, 386
U.S. 738 (1967), Owens’ counsel has filed a brief certifying that there are no meritorious
grounds for appeal, but questioning whether the district court adequately explained the
sentence and whether the sentence is greater than necessary to accomplish the purposes
of sentencing. Owens has filed a pro se supplemental brief raising procedural and
substantive sentencing issues. We affirm.
We generally review the reasonableness of Owens’ sentence for abuse of
discretion. United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 2015). However, we
review any unpreserved sentencing challenges for plain error. United States v. Aplicano-
Oyuela, 792 F.3d 416, 422 (4th Cir. 2015). First, we assess procedural reasonableness,
considering whether the district court properly calculated the Guidelines range, allowed
the parties to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2012) factors, and sufficiently explained the selected sentence. Gall v. United States,
552 U.S. 38, 49-51 (2007). 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 sentence that is within or below a properly calculated
Guidelines range is presumptively reasonable,” and this “presumption can only be
rebutted by showing that the sentence is unreasonable when measured against the 18
U.S.C. § 3553(a) factors.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
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Our review of the record leads us to conclude that Owens’ sentence is
procedurally sound. In her pro se brief, Owens first contends that the district court
miscalculated her criminal history category by failing to count sentences for three
separate offenses for which she was sentenced on the same date as a single sentence.
However, the court properly counted these sentences separately because Owens was
arrested for each offense on a different date. See U.S. Sentencing Guidelines Manual
§ 4A1.2(a)(2) (2016) (“Prior sentences always are counted separately if the sentences
were imposed for offenses that were separated by an intervening arrest (i.e., the defendant
is arrested for the first offense prior to committing the second offense).”). Owens next
claims that the district court erred in considering conduct in dismissed counts to increase
her sentence, but this conduct was properly considered as relevant conduct. See United
States v. Barber, 119 F.3d 276, 284 (4th Cir. 1997) (holding uncharged or dismissed
conduct may be considered as relevant conduct in fashioning sentence). Further, while
both Anders counsel and Owens argue that the district court’s reasoning was insufficient,
the court adequately explained the sentence and its rationale for denying Owens’ request
for a sentence at the bottom of the Guidelines range.
Moreover, Owens’ 57-month sentence is substantively reasonable. Although both
Anders counsel and Owens argue that the sentence is excessive in light of certain
mitigating factors, at sentencing, the court specifically addressed these factors in its
discussion of the § 3553(a) factors, but concluded that the negative factors outweighed
the positive. Thus, Owens has failed to overcome the presumption of substantive
reasonableness accorded her within-Guidelines-range sentence.
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In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious grounds for appeal. We therefore affirm the district court’s
judgment. This court requires that counsel inform Owens, in writing, of the right to
petition the Supreme Court of the United States for further review. If Owens requests
that a petition be filed, but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Owens.
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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