United States v. Marcum , 199 F. App'x 261 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4442
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WANDA MARCUM,
Defendant - Appellant.
No. 05-4443
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TOMMY MARCUM,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-03-205; CR-03-205-2)
Submitted: August 11, 2006 Decided: September 7, 2006
Before MICHAEL and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Herbert L. Hively, II, Hurricane, West Virginia; Tracy Weese,
Shepherdstown, West Virginia, for Appellants. Charles T. Miller,
United States Attorney, L. Anna Forbes, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Wanda Marcum (“Wanda”) and Tommy Marcum (“Tommy”) each
pled guilty to one count of mail fraud in violation of 18 U.S.C.
§§ 2, 1341 (2000) and one count of aiding and abetting the use of
fire to commit a federal felony in violation of 18 U.S.C. §§ 2,
844(h) (2000). The district court sentenced Wanda to 180 months in
prison, three years of supervised release, and restitution. Tommy
was sentenced to 101 months in prison, three years of supervised
release, and restitution. On appeal, Wanda contends her sentence
“was unreasonable in that the court should have used discretion and
rejected the advisory guideline range.” Tommy contends the
district court plainly erred by failing to sua sponte dismiss the
use of fire count against him for being filed outside the statute
of limitations. We affirm.
We will affirm the sentence imposed by the district court
as long as it is within the statutorily prescribed range and is
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
A sentence within a properly calculated advisory guideline range is
presumptively reasonable. United States v. Green, 436 F.3d 449,
457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). This
presumption can only be rebutted by showing the sentence is
unreasonable when measured against the factors under 18 U.S.C.
§ 3553(a) (2000). United States v. Montes-Pineda, 445 F.3d 375,
379 (4th Cir. 2006), pet. for cert. filed, ___ U.S.L.W. ___ (July
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21, 2006) (No. 06-5439). Even when the sentence is outside the
advisory range, it will generally be deemed reasonable “if the
reasons justifying the variance are tied to § 3553(a) and are
plausible.” United States v. Moreland, 437 F.3d 424, 434 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006).
The district court sentenced Wanda to sixty months on the
mail fraud count and a consecutive ten-year term on the use of fire
count. At sentencing, Wanda acknowledged she received a break due
to the district court’s acceptance of the parties’ stipulated cap
of sixty months on the mail fraud count. Prior to the cap, her
advisory guideline range for that count was sixty-three to seventy-
eight months. Nevertheless, she requested that the court sentence
her below the sixty months based on her age of fifty-one at
sentencing.
The district court considered the § 3553(a) factors and
determined the sixty-month sentence on the mail fraud count was
appropriate because it would result in an overall sentence that was
substantial enough to satisfy the statutory objectives of
sentencing, including deterring others from engaging in the same
kind of fraudulent conduct. On appeal, Wanda conclusorily asserts
a lesser sentence would have been adequate to punish her, deter
further crime, and protect society. We have reviewed the record
and conclude her sentence was reasonable.
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Tommy contends the district court plainly erred by
failing to sua sponte dismiss count one of the superseding
indictment filed on December 3, 2003, charging him with a violation
of 18 U.S.C. §§ 2, 844(h) occurring on March 27, 1994. He notes
that Wanda waived her right to indictment within the statute of
limitations as to the one-count information filed against her and
asserts it concerned the same charge. However, the one-count
information filed against Wanda charged her with mail fraud in
violation of 18 U.S.C. §§ 2, 1341 to which a five-year period of
limitation applies. The charge that Tommy challenges on appeal is
subject to a ten-year period of limitation. See 18 U.S.C. § 3295(2000). Thus, this issue is without merit.*
Accordingly, we affirm the convictions and sentences of
both defendants. 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
*
As noted by the Government, Tommy does not raise an ex post
facto argument on appeal, but it would also be without merit. The
effective date of 18 U.S.C. § 3295, which extended the period of
limitation from five to ten years, was April 24, 1996. Because the
change was effective within the original five-year limitations
period then applicable to the use of fire count under 18 U.S.C.
§ 3282(a), there was no ex post facto violation. See United
States v. Jeffries, 405 F.3d 682, 685 (8th Cir.) (“The law is well
settled that extending a limitations period before prosecution is
barred does not violate the ex post facto clause.”), cert. denied,
126 S. Ct. 631 (2005).
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