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United States v. Sinclair , 293 F. App'x 235 ( 2008 )


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  •                                UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4272
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LOUIE GEORGE SINCLAIR, a/k/a Vincent Metallo,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:07-cr-00083-JAB-1)
Submitted:   August 18, 2008             Decided:   September 17, 2008
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Harry L.
Hobgood, Angela Hewlett Miller, Assistant United States Attorneys,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Louie    George    Sinclair     was    convicted    of   wire   fraud,    in
violation of
    18 U.S.C. § 1343
     (2000), and was sentenced to eighteen
months in prison.      Sinclair now appeals.        His attorney has filed a
brief pursuant to Anders v. California,
    386 U.S. 738
     (1967),
raising one issue but stating that there are no meritorious grounds
for appeal. Sinclair was advised of his right to file a pro se
supplemental   brief,    but   did    not    file   a   brief.       Finding   no
reversible error, we affirm.
Sinclair asserts that the district court erred when it used
the 2001 version of the U.S. Sentencing Guidelines Manual in
calculating his advisory Guidelines range.              We disagree.
We note first that, although Sinclair’s sentencing hearing
took place in February 2008, the district court properly did not
use the version of the Guidelines then in effect because, under
Fourth Circuit precedent, see, e.g., United States v. Iskander,
    407 F.3d 232
    , 242 & n.8 (4th Cir. 2005), to do so would have resulted
in a violation of the Ex Post Facto Clause.                      The court was
obligated to use the Guidelines edition in effect when Sinclair
committed the offense. See USSG §§ 1B1.11(a), (b)(1), p.s. (2007).
We have stated that wire fraud is not an ongoing offense;
instead, it “occur[s] on [a] specific, identifiable occasion[].”
United States v. Bakker,
    925 F.2d 728
    , 739 (4th Cir. 1991).                Wire
fraud “is complete when a transmission is made to further the
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overall scheme to defraud.”        United States v. Tulaner,
    512 F.3d 576
    , 579 (9th Cir. 2008); United States v. Carrington,
    96 F.3d 1
    ,
7 (1st Cir. 1996).     Sinclair committed wire fraud in March 2002,
when the transmission in question took place.        Accordingly, the
district court correctly used the 2001 version of the Guidelines in
calculating Sinclair’s advisory Guidelines range.
We review a sentence for reasonableness, applying the abuse of
discretion standard. Gall v. United States,
    128 S. Ct. 586
    , 597-98
(2007); see also United States v. Pauley,
    511 F.3d 468
    , 473 (4th
Cir. 2007).    The record reveals that the district court followed
the   necessary   procedure   in   sentencing   Sinclair,   calculating
Sinclair’s advisory Guidelines range of 18-24 months, considering
that range in conjunction with the factors set forth at
    18 U.S.C.A. § 3553
    (a) (West 2000 & Supp. 2008), and explaining its reason for
selecting the sentence.    Pauley,
    511 F.3d at 473
    .     We may presume
that a sentence within the properly calculated advisory Guidelines
range is reasonable.     United States v. Allen,
    491 F.3d 178
    , 193
(4th Cir. 2007); see also Rita v. United States,
    127 S. Ct. 2456
    ,
2462-69 (2007).    Sinclair has not rebutted this presumption.      We
conclude that his sentence is reasonable.
We have examined the entire record in this case in accordance
with the requirements of Anders, and we find no meritorious issues
for appeal.   Accordingly, we affirm.     This court requires counsel
inform his client, in writing, of his right to petition the Supreme
3
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, counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must state
that a copy of the motion 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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