United States v. Pardue , 289 F. App'x 619 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4766
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KELLY KAY PARDUE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., District
Judge. (8:07-cr-00276-HMH)
Submitted: February 26, 2008 Decided: August 11, 2008
Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
William T. Clarke, SARRATT & CLARKE, Greenville, South Carolina,
for Appellant. William Corley Lucius, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kelly Kay Pardue pled guilty to one count of conspiring
to defraud the United States by making false claims with the
Internal Revenue Service, in violation of 18 U.S.C. § 286 (2000),
and nine counts of making false claims, in violation of 18 U.S.C.
§§ 2, 287 (2000), and the district court sentenced her to twenty-
four months in prison, restitution, and three years of supervised
release. On appeal, Pardue’s attorney has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting, in his
opinion, there are no meritorious grounds for appeal but raising
the issues of whether the district court erred in calculating
Pardue’s guideline range, denying her motion for a downward
departure, and sentencing her to twenty-four months, and whether
the district court’s comments at sentencing afford her any basis
for relief. Pardue was advised of her right to file a pro se
supplemental brief but has not done so. We affirm.
We will affirm a sentence imposed by the district court
as long as it is within the statutorily prescribed range and
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
In assessing the reasonableness of the sentence, we focus on
whether the district court abused its discretion in imposing the
sentence. United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). We first examine the sentence for significant procedural
errors, and then we look at the substance of the sentence. Id. A
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sentence within a properly calculated sentencing guideline range is
presumptively reasonable. United States v. Allen, 491 F.3d 178,
193 (4th Cir. 2007). We review a district court’s factual findings
for clear error and its legal conclusions de novo. United States
v. Hampton, 441 F.3d 284, 287 (4th Cir. 2006).
We have reviewed the record and find Pardue’s sentence is
both procedurally and substantively reasonable. Although Pardue’s
counsel raises the issue of whether the district court properly
calculated her guideline range and sentenced her to twenty-four
months in prison, he concludes the sentence was within a properly
calculated guideline range as well as the statutory maximum, and it
was not unreasonable. We agree. We also agree that the district
court’s comments at sentencing do not indicate any misunderstanding
regarding critical facts or issues by the court in selecting the
sentence. Because the record indicates the district court denied
Pardue’s motion for downward departure as unwarranted and was under
no misperception as to its authority to depart, the court’s refusal
to depart is not subject to appellate review. See Allen, 491 F.3d
at 193. Therefore, we dismiss this portion of the appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore dismiss the appeal in part and affirm the
district court’s judgment. This court requires that counsel inform
his client, in writing, of his right to petition the Supreme Court
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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 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.
DISMISSED IN PART;
AFFIRMED IN PART
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