United States v. Lonnie Heyward ( 2012 )


Menu:
  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-5096
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    LONNIE HEYWARD,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Charleston. David C. Norton, District Judge.
    (2:10-cr-01197-DCN-4)
    Submitted:   May 31, 2012                      Decided:   June 5, 2012
    Before KING, DUNCAN, and DIAZ, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Douglas H. Westbrook, Charleston, South Carolina, for Appellant.
    William Nettles, United States Attorney, M. Rhett DeHart,
    Assistant United States Attorney, Charleston, South Carolina,
    for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Lonnie    Heyward          appeals         from     the     fifty-seven-month
    sentence imposed after he pleaded guilty, pursuant to a written
    plea    agreement,      to       conspiracy         to     make    and     pass    counterfeit
    business checks.            Heyward argues on appeal that the district
    court erred in holding him accountable for a loss of $409,558.66
    involving over fifty victims, and increasing his offense level
    based on these findings.             He also argues that the court erred in
    assessing one criminal history point for a time-served sentence
    and that he should have received a downward variance sentence
    since   he    alleged      that     he    did       not     receive       profits       from   the
    scheme.      Finding no error, we affirm.
    Our review of the record reveals that the district
    court     properly      determined          Heyward’s             total     offense       level,
    criminal      history      category,       and       Sentencing           Guidelines      range.
    Although      Heyward      challenges       on       appeal        the    district       court’s
    determination of the amount of loss, Heyward waived his right to
    contest that issue by stipulating to the value in the factual
    basis   supporting         the    plea    agreement.              See     United    States       v.
    Williams,     
    29 F.3d 172
    ,    174-75         (4th    Cir.    1994)     (holding         that
    defendant’s        stipulation       to    drug       amounts       prior     to    sentencing
    waived right to appeal issue).
    Heyward       also     challenges             the     number         of    victims
    involved.      This court reviews a district court’s determination
    2
    of the number of victims for clear error.                                     United States v.
    Castner, 
    50 F.3d 1267
    , 1274 (4th Cir. 1993).                                  We conclude that
    Heyward’s acknowledgment of the loss amount at the Fed. R. Crim.
    P. 11 hearing, coupled with the case report listing the victims
    and associated loss, is sufficient to establish the number of
    victims enhancement.             The court did not clearly err.
    Further, the court did not err in assessing a criminal
    history point for Heyward’s April 8, 2004 sentence for driving
    under        suspension.             See       U.S.       Sentencing         Guidelines      Manual
    § 4A1.2, comment.(n.2) (2010).                            Therefore, the court did not
    commit procedural error.
    Once   the    court          has       determined       that      there    is    no
    procedural          error,      it     must          then       consider      the     substantive
    reasonableness           of    the     sentence,            “tak[ing]        into    account      the
    totality of the circumstances.”                          United States v. Gall, 
    552 U.S. 38
    ,     51     (2007).          If     the       sentence         imposed      is     within      the
    appropriate          Guidelines         range,           this     court      may     consider     it
    presumptively reasonable.                  United States v. Mendoza-Mendoza, 
    597 F.3d 212
    , 216 (4th Cir. 2010).                           The presumption may be rebutted
    by a showing “that the sentence is unreasonable when measured
    against       the    [18      U.S.C.]      §    3553(a)         [2006]     factors.”         United
    States       v.    Montes-Pineda,          
    445 F.3d 375
    ,   379    (4th    Cir.     2006)
    (internal quotation marks omitted).
    3
    Heyward argues that he should have received a downward
    variance    sentence      because    he       allegedly      did      not    receive     a
    financial gain from the conspiracy and his only motive was to
    protect    his   children.       Because      the     district     court     imposed     a
    within-Guidelines sentence, it is deemed by this court to be
    presumptively reasonable.           See Mendoza-Mendoza, 
    597 F.3d at 216
    .
    Heyward    has    not    rebutted    that     presumption.            Therefore,       the
    district    court    committed      no    reversible      substantive         error     in
    sentencing Heyward to fifty-seven months’ imprisonment.
    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
    4
    

Document Info

Docket Number: 20-1494

Judges: King, Duncan, Diaz

Filed Date: 6/5/2012

Precedential Status: Non-Precedential

Modified Date: 11/5/2024