United States v. Poakwa ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4472
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CYNTHIA POAKWA, a/k/a Cynthia Barbour,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07-
cr-00141-RWT-1)
Submitted: January 14, 2010 Decided: March 4, 2010
Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Martin G. Bahl, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant.
Bryan E. Foreman, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cynthia Poakwa pleaded guilty to four counts of aiding
and abetting the filing of fraudulent tax returns, in violation
of 26 U.S.C. § 7206(2) (2006). The district court sentenced
Poakwa to thirty-three months of imprisonment and Poakwa now
appeals. Her attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising two issues but stating
that there are no meritorious issues for appeal. We affirm.
In the Anders brief, counsel questions whether the
district court erred in accepting Poakwa’s guilty plea as
knowing and voluntary. Because Poakwa did not move in the
district court to withdraw her guilty plea, any error in the
Rule 11 hearing is reviewed for plain error. See United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
Furthermore, there is a strong presumption that a defendant’s
guilty plea is binding and voluntary if she has received an
adequate Fed. R. Crim. P. 11 hearing. United States v. Puckett,
61 F.3d 1092, 1099 (4th Cir. 1995); see Blackledge v. Allison,
431 U.S. 63, 74 (1977) (finding that statements made during a
plea hearing “carry a strong presumption of verity”). Our
review of the record discloses that the district court
substantially complied with the requirements of Rule 11. We
conclude, therefore, that the district court did not err in
accepting Poakwa’s guilty plea as knowing and voluntary.
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Counsel next questions whether the sentence imposed by
the district court is reasonable. We review a sentence for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); see also United
States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied,
130 S. Ct. 290 (2009). In so doing, we first examine the
sentence for “significant procedural error,” including “failing
to calculate (or improperly calculating) the [g]uidelines range,
treating the [g]uidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence . . . .” Gall, 128 S. Ct. at 597.
This court then “‘consider[s] the substantive reasonableness of
the sentence imposed.’” United States v. Evans, 526 F.3d 155,
161 (4th Cir.) (quoting Gall, 128 S. Ct. at 597), cert. denied,
129 S. Ct. 476 (2008). “Substantive reasonableness review
entails taking into account the ‘totality of the circumstances,
including the extent of any variance from the [g]uidelines
range.’” United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007) (quoting Gall, 128 S. Ct. at 597). If the sentence is
within the guidelines range, we apply a presumption of
reasonableness. United States v. Allen, 491 F.3d 178, 193 (4th
Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56
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(2007) (upholding presumption of reasonableness for
within-guidelines sentence).
We have thoroughly reviewed the record and find that
the sentence is both procedurally and substantively reasonable.
The district court properly calculated the advisory guidelines
range, considered the 18 U.S.C. § 3553(a) factors, and provided
a comprehensive explanation of its chosen sentence. See United
States v. Carter, 564 F.3d 325, 328-30 (4th Cir. 2009). In
addition, Poakwa has failed to rebut the presumption of
substantive reasonableness we accord to her within-guidelines
sentence.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. We therefore affirm the judgment of the district
court. This court requires that counsel inform Poakwa, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Poakwa 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 Poakwa. We dispense
with oral argument because the facts and legal
4
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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