United States v. Lewis , 234 F. App'x 95 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4295
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THERESA M. LEWIS, a/k/a Theresa Finnochio,
Defendant - Appellant.
No. 06-4383
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
THERESA M. LEWIS, a/k/a Theresa Finnochio,
Defendant - Appellee.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:04-cr-00138-1)
Submitted: May 23, 2007 Decided: July 12, 2007
Before WILLIAMS, Chief Judge, and MICHAEL and GREGORY, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Lawrence W. Hewitt, JAMES, MCELROY & DIEHL, P.A., Charlotte, North
Carolina, for Appellant. Gretchen C.F. Shappert, United States
Attorney, Jonathan A. Vogel, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
- 2 -
PER CURIAM:
Theresa M. Lewis pleaded guilty by written plea agreement
to conspiracy to defraud the United States in violation of 18
U.S.C. § 371 (2000), and conspiracy to commit money laundering in
violation of 18 U.S.C. § 1956(h) (2000). She was sentenced to
thirty-six months in prison. In No. 06-4295, Lewis asserts her
convictions should be vacated because the trial court erred by
failing to ensure her plea was knowing and voluntary since the plea
agreement contained errors when it was executed. The Government
responds that Lewis’s appeal is foreclosed by an appellate waiver
contained in her plea agreement and that, in any event, the
clerical errors did not render her plea unknowing and involuntary.
In No. 06-4383, the Government cross-appealed, claiming the
district court’s imposition of a thirty-six month variance sentence
is unreasonable. We affirm Lewis’s convictions and sentence.
Lewis claims that her plea was not knowing and voluntary
because her plea agreement contained errors that were unnoticed by
her or her counsel when she signed the plea agreement. A defendant
cannot waive her right to raise a colorable challenge to the
voluntariness of her guilty plea. See, e.g., United States v.
Attar, 38 F.3d 727, 732-33 & n.2 (4th Cir. 1994). Thus, Lewis’s
claim is not precluded by the waiver of appellate rights in her
plea agreement. Lewis also asserts this court should vacate her
convictions because the magistrate judge failed to ensure the
- 3 -
voluntariness of Lewis’s plea at the Rule 11 hearing. Lewis’s
arguments are meritless.
First, Lewis does not deny she was questioned by the
magistrate judge regarding the appellate waiver during the Rule 11
hearing. Moreover, the two errors alleged by Lewis to have
rendered her plea unknowing and involuntary were nothing more than
typographical errors that were corrected by the Government at the
Rule 11 hearing. In fact, the plea agreement made clear in several
places the counts to which Lewis was pleading guilty.
Additionally, the magistrate judge informed Lewis during the Rule
11 hearing that she was pleading guilty to “Counts One and Sixteen
in your Bill of Indictment.” The magistrate judge described both
charges and the penalties Lewis faced for those charges, and when
asked whether she understood the two charges to which she was
pleading guilty, Lewis responded “yes.” Accordingly, we find that
Lewis’s plea was knowing and voluntary, and we affirm her
convictions.
In its cross-appeal, No. 06-4383, the Government
challenges the district court’s decision to grant Lewis a 43%
downward variance sentence. According to the Government, the
district court failed to engage in virtually any factual analysis
of the 28 U.S.C. § 3553(a) (2000) factors and should have imposed
a sentence within, if not above, the guidelines range. We review
a district court’s decision to grant a variance for abuse of
- 4 -
discretion. See United States v. Shortt, No. 06-4774, -- F.3d --,
2007 WL 1366055, at *3 (4th Cir. May 10, 2007); United States v.
Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309
(2006). We find the district court did not err in sentencing Lewis
below the guidelines range.
We conclude the district court’s explanations of its
reasons for sentencing Lewis satisfied these standards, and Lewis’s
sentence was therefore reasonable. The court thoroughly considered
the § 3553(a) factors in imposing Lewis’s sentence. In particular,
the district court stated that: (i) Lewis did not have an
extensive criminal history; (ii) it could craft a sentence “to
reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment;” (iii) any sentence would
provide deterrence; (iv) there was no need to protect the public
from further crimes; (v) it would be appropriate to give Lewis
adequate time to obtain vocational training since she would no
longer be able to work as a real estate broker; (vi) while a
probationary sentence was available, since Lewis failed to fully
cooperate with the Government, such a sentence was inappropriate;
and (vii) there was no evidence of defendants with similar records
who had been found guilty of similar conduct.
Lewis also affirmed at the sentencing hearing that she
was able to pay the $42,000 in restitution within sixty days of
sentencing. Based on this affirmation, the district court found
- 5 -
that “the need to provide restitution to any victims of the offense
is a strong indication to the Court that a variance is appropriate
and indicated under all the circumstances.”
Contrary to the Government’s assertions, we conclude the
district court’s variance sentence was “selected pursuant to a
reasoned process in accordance with the law.” Green, 436 F.3d at
457. We further conclude that the extent of the variance was
reasonable, see Moreland, 437 F.3d at 436 (“The second question we
must address is whether the extent of the variance was
reasonable.”). Because the district court’s explanation provided
sufficient indication that it considered the § 3553(a) factors and
considered the arguments both parties made at sentencing, see
Moreland, 437 F.3d at 434-35; Montes-Pineda, 445 F.3d at 380-81,
and because the resulting sentence is not unreasonable, we affirm
Lewis’s variance sentence.
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
- 6 -