United States v. La'Keesha Kee

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4716
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LA’KEESHA NICOLE KEE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:13-cr-00169-HEH-3)
Submitted: September 30, 2015 Decided: October 19, 2015
Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Amy Leigh Austin, LAW OFFICE OF AMY L. AUSTIN, PLLC, Richmond,
Virginia, for Appellant. Angela Mastandrea-Miller, Assistant
United States Attorney, Richmond, Virginia; Jasmine Hyejung
Yoon, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
La’Keesha Nicole Kee was convicted, following a bench
trial, of uttering counterfeit federal reserve notes, in
violation of 18 U.S.C. § 472 (2012). The district sentenced her
to 30 months’ imprisonment. On appeal, Kee’s counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal but
questioning whether sufficient evidence supported Kee’s
conviction and whether the district court adequately explained
its rejection of Kee’s request for a downward variant sentence. *
Counsel first questions the sufficiency of the evidence.
We review de novo the denial of a Rule 29 motion for a judgment
of acquittal. United States v. Hickman, 626 F.3d 756, 762 (4th
Cir. 2010). A defendant challenging the sufficiency of the
evidence faces a heavy burden. United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997). The verdict must be sustained
when “there is substantial evidence in the record, when viewed
in the light most favorable to the government, to support the
conviction.” United States v. Jaensch, 665 F.3d 83, 93 (4th
Cir. 2011) (internal quotation marks omitted). “Substantial
evidence is evidence that a reasonable finder of fact could
*
A restitution issue noted by this court has been resolved
on limited remand to the district court.
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accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” Id. (alteration
and internal quotation marks omitted).
In order to establish that Kee was guilty of uttering a
counterfeit note, the Government was required to prove: (1) that
Kee uttered counterfeit money; (2) that she knew the money was
counterfeit at the time of the uttering; and (3) that she
uttered the counterfeit money with the intent to defraud.
United States v. Leftenant, 341 F.3d 338, 347 (4th Cir. 2003).
“Fraudulent intent may be inferred from the totality of the
circumstances and need not be proven by direct evidence.”
United States v. Ham, 998 F.2d 1247, 1254 (4th Cir. 1993).
We conclude that sufficient evidence supports Kee’s
conviction. Kee participated in a counterfeit bill trafficking
organization for several months before and after the date of the
charged offense; surveillance video showed she purchased items
using cash, taking the bill she used to purchase the items from
one pocket and depositing her change in a separate pocket; a
store manager testified that the only bills that appeared on the
video to match the counterfeit bills were those used by Kee and
her accomplice; and the bills recovered from the cash register
were identified at trial as counterfeit. Moreover, Kee’s
knowledge and intent could be inferred from her statements and
actions shortly before and after her arrest.
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Counsel next questions whether the district court
adequately explained its reasons for rejecting Kee’s request for
a downward variant sentence. We review sentences for
reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This
review entails appellate consideration of both the procedural
and substantive reasonableness of the sentence. Id. at 51. We
first ensure that the district court committed no “significant
procedural error,” including improper calculation of the
Guidelines range, insufficient consideration of the 18 U.S.C.
§ 3553(a) (2012) factors, and inadequate explanation of the
sentence imposed. Id.In evaluating the sentencing court’s explanation of a
selected sentence, we have consistently held that, while the
district court must consider the statutory factors and explain
the sentence, it need not “robotically tick through” every
§ 3353(a) factor on the record, particularly when the court
imposes a sentence within the properly calculated Guidelines
range. United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006). At the same time, the district court “must make an
individualized assessment based on the facts presented.” Gall,
552 U.S. at 50. While the “individualized assessment need not
be elaborate or lengthy, . . . it must provide a rationale
tailored to the particular case at hand and adequate to permit
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meaningful appellate review.” United States v. Carter, 564 F.3d
325, 330 (4th Cir. 2009) (internal quotation marks omitted).
We conclude that the district court adequately explained
its reasons for rejecting Kee’s request for a downward variance.
The court cited Kee’s heavy involvement in the counterfeiting
conspiracy, her recruitment of others to join the conspiracy,
her significant criminal history, and her failure to show
remorse for her actions. Therefore, we perceive no procedural
error in Kee’s sentence.
If a sentence is procedurally reasonable, we then consider
whether it is substantively reasonable, “taking into account the
totality of the circumstances.” Gall, 552 U.S. at 51. “Any
sentence that is within or below a properly calculated
Guidelines range is presumptively [substantively] reasonable.
Such a presumption can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors.” United States v. Louthian, 756 F.3d 295,
306 (4th Cir.) (citations omitted), cert. denied, 135 S. Ct. 421(2014). After review of the record, we conclude that Kee has
failed to rebut the presumed reasonableness of her within-
Guidelines sentence.
In accordance with Anders, we have reviewed the record in
this case, and have found no meritorious issues. Accordingly,
we affirm the district court’s judgment. This court requires
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that counsel inform Kee, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Kee 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 Kee.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED
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