United States v. Jing Jing Chen , 491 F. App'x 401 ( 2012 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 12-4218
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    JING JING CHEN,
    Defendant - Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro. Catherine C. Eagles,
    District Judge. (1:11-cr-00085-CCE-6)
    Submitted:   September 28, 2012             Decided:   December 13, 2012
    Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Todd Allen Smith, LAW OFFICE OF TODD ALLEN SMITH, Graham, North
    Carolina, for Appellant. Frank Joseph Chut, Jr., Assistant
    United   States  Attorney,  Greensboro,  North   Carolina,  for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Jing    Jing       Chen   appeals      from       her    convictions      and
    forty-four month sentence imposed pursuant to her guilty plea to
    conspiracy to commit access device fraud and aggravated identity
    theft.     On appeal, her attorney 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 the
    district court erred in imposing sentence.                       Chen filed a pro se
    supplemental         brief,       challenging       her     sentence      on     numerous
    grounds.      After careful consideration of the record, we affirm.
    Chen    raises      several    claims       that   the    district      court
    miscalculated        her    Guidelines      range.         However,      Chen    did   not
    object   to     her    presentence         report       (“PSR”).        Therefore,      the
    district       court        was     entitled        to      accept       its     factual
    determinations.         See United States v. Terry, 
    916 F.2d 157
    , 162
    (4th   Cir.    1990)       (in    absence   of     an    affirmative      showing      that
    information contained in PSR is unreliable, a district court is
    free to adopt the PSR’s factual findings).                            Moreover, Chen’s
    claims of error are not supported by the record.
    Next,    Chen       claims    that    she     was       entitled   to     the
    application of the safety valve in 
    18 U.S.C. § 3553
    (f) (2006),
    presumably     to     reduce      her   identity        theft    sentence      below   the
    statutory mandatory minimum.                However, the safety valve in this
    2
    subsection applies only to controlled substance offenses and,
    thus, is inapplicable to Chen’s sentence.
    Finally, Chen asserts that the U.S. Attorney’s Office
    is improperly attempting to collect her restitution amount in
    full   while   she    is   still    in   prison   in    contradiction     of   the
    district    court’s    judgment.         However,      any   challenge    to   the
    execution of a sentence, rather than the sentence itself, must
    be brought pursuant to 
    28 U.S.C.A. § 2241
     (West 2006 & Supp.
    2012) in the district of confinement.                   See United States v.
    Miller, 
    871 F.2d 488
    , 489-90 (4th Cir. 1989).                     As such, this
    claim is not cognizable on direct appeal.
    In accordance with Anders, we have reviewed the entire
    record and have found no meritorious issues for appeal.                          We
    conclude that Chen’s guilty plea was knowing and voluntary and
    her below-Guidelines sentence was reasonable.                  Accordingly, we
    grant Chen’s motion to file an informal appendix and affirm her
    convictions    and    sentence.       This    court    requires    that   counsel
    inform Chen in writing of her right to petition the Supreme
    Court of the United States for further review.                If Chen 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 that a copy thereof was served on Chen.                  We dispense
    with oral argument because the facts and legal contentions are
    3
    adequately   presented   in   the   materials   before   the   court   and
    argument would not aid the decisional process.
    AFFIRMED
    4
    

Document Info

Docket Number: 12-4218

Citation Numbers: 491 F. App'x 401

Judges: King, Gregory, Hamilton

Filed Date: 12/13/2012

Precedential Status: Non-Precedential

Modified Date: 11/6/2024