United States v. Marsha King , 677 F. App'x 875 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4200
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARSHA KING,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:14-cr-00065-RAJ-DEM-1)
Submitted: January 27, 2017 Decided: February 7, 2017
Before KING, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory B. English, ENGLISH LAW FIRM, PLLC, Alexandria, Virginia,
for Appellant. Dana J. Boente, United States Attorney, Joseph L.
Kosky, Stephen W. Haynie, Assistant United States Attorneys,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marsha King was convicted by a jury on two counts of theft of
public funds and twelve counts of aggravated identity theft, in
violation of 18 U.S.C. §§ 2, 641, 1028A (2012). She received an
aggregate sentence of 100 months’ imprisonment, comprising a
below-Guidelines sentence of 52 months’ imprisonment on the theft
of public funds convictions and consecutive terms of 24 months’
imprisonment each on two of the aggravated identity theft
convictions, with the sentences on the remaining ten counts ordered
to run concurrently. On appeal, King argues that insufficient
evidence supported three of her aggravated identity theft
convictions and that her sentence was substantively unreasonable.
For the reasons that follow, we affirm.
King filed fraudulent tax returns in the names of students
who attended a certain high school in Memphis, Tennessee, where
King’s sister was employed as a teacher. King filed the returns
without the students’ knowledge and directed that the tax refunds
owed on these returns be deposited into bank accounts in King’s
name or the names of people close to her, such as her husband,
siblings, and friends. Some of the tax returns were filed from
Internet Protocol addresses affiliated with King.
This court reviews de novo the sufficiency of the evidence
supporting a conviction. United States v. McLean, 715 F.3d 129,
137 (4th Cir. 2013). In assessing evidentiary sufficiency, this
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court must determine whether, viewing the evidence in the light
most favorable to the Government and accepting the factfinder’s
determinations of credibility, the verdict is supported by
substantial evidence — that is, “evidence that a reasonable finder
of fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. King, 628 F.3d 693, 700 (4th Cir. 2011) (internal
quotation marks omitted). “A defendant bringing a sufficiency
challenge must overcome a heavy burden, and reversal for
insufficiency must be confined to cases where the prosecution’s
failure is clear.” United States v. Engle, 676 F.3d 405, 419 (4th
Cir. 2012). To establish aggravated identity theft, the Government
must prove that the defendant “(1) knowingly transferred,
possessed, or used, (2) without lawful authority, (3) a means of
identification of another person, (4) during and in relation to a
predicate felony offense.” United States v. Adepoju, 756 F.3d
250, 256 (4th Cir. 2014) (internal quotation marks omitted).
On appeal, King challenges the first two elements of the
offense, asserting that “the prosecution never established that
any returns had been filed without the knowledge or consent” of
the victims or that the victims themselves did not file the
returns. She bases this argument on the fact that the Government
did not call these victims named in these counts as witnesses or
otherwise establish that the victims could not consent to her
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actions. We reject this argument. Our review of the record leads
us to conclude that the substantial circumstantial evidence
offered at trial was sufficient to allow a reasonable juror to
find King guilty on Counts 8, 9, and 15.
Next, King argues that her aggregate sentence of 100 months’
imprisonment is substantively unreasonable. When evaluating the
substantive reasonableness of a sentence, this court considers the
totality of the circumstances. Gall v. United States, 552 U.S.
38, 51 (2007). We presume a sentence within or below the correctly
calculated Guidelines range is substantively reasonable. United
States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). To
successfully challenge the substantive reasonableness of a
sentence, a defendant must rebut this “presumption . . . by showing
that the sentence is unreasonable when measured against the 18
U.S.C. § 3553(a) factors.” Id.The portion of King’s sentence that was based on the
Sentencing Guidelines — a 52-month sentence on Counts 1 and 2 —
was below the applicable Guidelines range. ∗ On appeal, King does
∗The sentences for the aggravated identity theft offenses
were dictated by statute rather than the Guidelines. United
States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008) (“A
statutorily required sentence . . . is per se reasonable.”),
abrogation on other grounds recognized by United States v.
Williams, 808 F.3d 238, 246 (4th Cir. 2015). Although the district
court exercised some discretion in ordering two of the aggravated
identity theft sentences to be served consecutive to all other
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not identify any error in the district court’s reasoning or assert
that it failed to consider any particular detail relevant to the
§ 3553 factors. Having reviewed the record, we discern no basis
for overcoming the presumption of reasonableness.
We deny King’s motions for leave to file a pro se brief, to
file an amendment to the pro se brief, and to extend the number of
pages in her brief. Because King is represented by an attorney
who has filed a brief on the merits as opposed to a brief under
Anders v. California, 386 U.S. 738 (1967), she is not entitled to
file a pro se supplemental brief. United States v. Washington,
743 F.3d 938, 941 n.1 (4th Cir. 2014); see Fed. R. App. P. 28(a),
(c) (permitting appellant to file a formal brief and a reply
brief). King has also moved to relieve her counsel and proceed
pro se on appeal. However, there is no constitutional right to
self-representation on appeal. See Martinez v. Court of Appeal,
528 U.S. 152, 161 (2000). Moreover, an appellant wishing to
proceed pro se “should so inform the Court at the earliest possible
time.” 4th Cir. R. 46(f). King waited until after the Government
filed its response brief to file her motion to proceed pro se.
Thus, we deny this motion as untimely. Finally, we deny as moot
sentences, King fails to explain how this amounts to an abuse of
discretion.
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King’s motions to reconsider the orders deferring action on the
above motions.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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