United States v. Harward , 94 F. App'x 998 ( 2004 )

Filed: April 23, 2004
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4941
(CR-02-86)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ELIZABETH ANN HARWARD,
Defendant - Appellant.
O R D E R
The Court withdraws the opinion filed October 16, 2003, and
files a corrected opinion this date.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4941
ELIZABETH ANN HARWARD,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-02-86; CR-02-353)
Submitted: November 5, 2003
Decided: April 23, 2004
Before LUTTIG, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Daniel Smith Johnson, GRACE, HOLTON, TISDALE & CLIFTON,
P.A., Winston-Salem, North Carolina, for Appellant. Sandra Jane
Hairston, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HARWARD
OPINION
PER CURIAM:
Elizabeth Ann Harward appeals her convictions and sentences for
conspiracy to possess with intent to distribute anabolic steroids in vio-
lation of 21 U.S.C. §§ 846; 841(a)(1), (b)(1)(D) (2000) and posses-
sion with intent to distribute anabolic steroids in violation of 21
U.S.C. § 841(a)(1),(b)(1)(D) (2000). Harward’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), raising for the
court’s consideration the issue of whether the district court properly
increased Harward’s offense level by three levels pursuant to
U.S.S.G. § 2J1.7 but stating that, in his view, there are no meritorious
grounds for appeal. Harward filed a pro se supplemental brief raising
the same issue as her counsel. She also challenges her sentence
because she was denied an adjustment under the "safety valve",
acceptance of responsibility, and a minor role adjustment, and had her
offense level computed using drugs obtained during civil rights viola-
tions and/or seized from co-defendants. Finally, Harward asserts that
she received ineffective assistance of counsel.
We review the district court’s factual determinations concerning
the application of the Sentencing Guidelines for clear error and legal
conclusions de novo. United States v. Daughtrey, 874 F.2d 213, 217
(4th Cir. 1989). After careful consideration, we find the preponder-
ance of the evidence demonstrates that Harward committed a new
criminal offense while on bond. Accordingly, the district court prop-
erly increased the offense level for the offense committed while on
release by three levels. See U.S.S.G. § 2J1.7; 18 U.S.C. § 3147(2000).
Harward asserts in her pro se supplemental brief that the district
court erred in denying her an adjustment for acceptance of responsi-
bility. The district court’s determination regarding acceptance of
responsibility is factual, and we review it with great deference for
clear error. U.S. Sentencing Guidelines Manual § 3E1.1, comment.
(n.5) (2000); United States v. Ruhe, 191 F.3d 376, 388 (4th Cir.
1999).
It is undisputed that Harward was arrested for committing a new
criminal offense after being released on bond. The district court may
UNITED STATES v. HARWARD 3
consider whether a defendant has voluntarily terminated or withdrawn
from criminal conduct in deciding whether she has accepted responsi-
bility. See U.S.S.G. § 3E1.1, comment. (n.1(b)). In light of Harward’s
intervening arrest, the district court did not clearly err in denying the
reduction. See United States v. Kidd, 12 F.3d 30, 34 (4th Cir. 1993)
(finding that defendant’s continued criminal conduct is inconsistent
with acceptance of responsibility).
In addition, Harward was found to have obstructed justice both
before and after her arrest on the first charge. This obstruction of jus-
tice precluded the sentencing court from granting a reduction in Har-
ward’s offense level for acceptance of responsibility unless Harward
could demonstrate that her circumstances presented an "extraordinary
case." U.S.S.G. § 3E1.1, cmt. n. 4. The district court did not clearly
err in determining that Harward failed to present such an extraordi-
nary case. See, United States v. Hudson, 272 F.3d 260, 264 (4th Cir.
2001)(holding that fear that government will not recommend a down-
ward departure is not the extraordinary case that permits the grant of
acceptance of responsibility when the defendant’s conduct supports
an obstruction of justice finding).
Harward also avers that the district court erred by denying her an
adjustment for her minor role in the offense under U.S.S.G. § 3B1.2.
The district court’s factual determinations concerning this adjustment
are reviewed for clear error and its legal determinations de novo.
United States v. Akinkoye, 185 F.3d 192, 201 (4th Cir. 1999). The
adjustments of this section are aimed at persons who are "substan-
tially less culpable than the average participant." Id. at 202. The court
asks whether the defendant’s conduct was material or essential to the
commission of the offense. Id. The record reveals that Harward
played a highly material role in obtaining and distributing the drugs
that were the object of the conspiracy in this case. Accordingly, we
find no error in the denial of the adjustment.
As for Harward’s remaining challenges to her sentence, we may
only review the record for plain error because Harward waived her
appellate rights on these issues. A failure to properly and timely
object constitutes a waiver. United States v. Davis, 954 F.2d 182, 186-
87 (4th Cir. 1992). Only incorrect guidelines applications which
amount to plain error may be reviewed on appeal. Fed. R. Crim. P.
4 UNITED STATES v. HARWARD
52(b). Under this standard, Harward must show error, which was
plain, that affected her substantial rights. Even then, this court will not
notice the error unless it seriously affects the fairness, integrity or
public reputation of judicial proceedings. United States v. Olano, 507
U.S. 725, 732, (1993). Because Harward made no objections at sen-
tencing, she waived appellate review. Finding that the district court
did not commit plain error in applying the sentencing guidelines, we
affirm.
Finally, Harward claims that she received ineffective assistance of
counsel. Claims of ineffective assistance of counsel are not properly
raised on direct appeal unless the record conclusively reveals that the
defendant’s representation was defective. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). We have reviewed the record and
determine that it does not conclusively establish ineffective assistance
of counsel. Therefore, Harward’s ineffective assistance claims are not
cognizable in this direct appeal.
We have reviewed the record in accordance with Anders and find
no meritorious issues. This court requires that counsel inform his cli-
ent, 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 a petition would be frivolous,
then counsel may file a motion for leave to withdraw from representa-
tion. Counsel’s motion must state that a copy thereof was served on
the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED