United States v. Park ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4086
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RENETTA NICOLE PARK,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-03-839)
Submitted: September 29, 2005 Decided: October 5, 2005
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. William Earl Day, II, Assistant
United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Renetta Nicole Park appeals her guilty-plea conviction
and sentence for using unauthorized access devices with intent to
defraud, in violation of 18 U.S.C. §§ 1029(a)(2), 2 (2000). Park’s
attorney has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967), stating there are no meritorious grounds for
appeal. Park has not filed a pro se brief despite being informed
of her right to do so. Finding no reversible error, we affirm.
In the Anders brief, counsel asserts that the district
court’s failure to advise Park of her right against self-
incrimination during the Fed. R. Crim. P. 11 colloquy constitutes
reversible error. “A variance from the requirements of this rule
is harmless error if it does not affect substantial rights.” Fed.
R. Crim. P. 11(h). Because Park raises this issue for the first
time on appeal, her claim is reviewed for plain error.
Consequently, Park must show: (1) an error occurred; (2) the error
was plain; (3) the error affected her substantial rights; and (4)
the error calls into question the fairness, integrity, or public
reputation of judicial proceedings. See United States v. Olano,
507 U.S. 725, 732 (1993).
The record demonstrates that the district court expressly
advised Park of the rights she would be giving up, including the
right to go to trial and the right to present and confront
witnesses. Furthermore, Park was clearly advised of the nature of
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the charges against her and the factual basis of her plea, as well
as the application of the sentencing guidelines. Thus, we conclude
that the additional information of the right not to testify at
trial would likely not have affected Park’s plea. Accordingly,
because this error did not affect Park’s substantial rights, we
conclude that the district court’s omission does not amount to
reversible error. Fed. R. Crim. P. 11(h); Olano, 507 U.S. at 732.
Although Park does not raise a challenge to her sentence
under United States v. Booker, 125 S. Ct. 738 (2005), despite being
given an opportunity to file supplemental briefing, counsel
questions the calculation of Park’s Sentencing Guidelines range and
the district court’s imposition of a ten-month sentence. Park
stipulated to her base offense level and the amount of loss, and
she points to no error in the guidelines calculation. Moreover,
because there were no impermissible judicial enhancements, we find
that she suffered no Sixth Amendment violation under Booker. In
addition, the record provides no nonspeculative basis suggesting
that the court would have sentenced the defendant differently had
the guidelines been advisory instead of mandatory. Accordingly, we
conclude that her sentence was not plainly erroneous. Olano, 507
U.S. at 732; United States v. Hughes, 401 F.3d 540, 546-47 (4th
Cir. 2005); United States v. White, 405 F.3d 208, 224 (4th Cir.
2005) (holding that a defendant must “demonstrate, based on the
record, that the treatment of the guidelines as mandatory caused
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the district court to impose a longer sentence than it otherwise
would have imposed.”).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Park’s conviction and sentence. This
court requires that counsel inform his client, in writing, of her
right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such 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 the client. 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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