United States v. Shirlene Boone

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4461
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHIRLENE REESE BOONE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (2:10-cr-00054-F-1)
Submitted: March 27, 2012 Decided: April 23, 2012
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
M. Gordon Widenhouse, Jr., RUDOLF WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina; Keith A. Williams, LAW OFFICES OF KEITH A.
WILLIAMS, P.A., Greenville, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to her written plea agreement, Shirlene Reese
Boone pled guilty to conspiracy to commit offenses against the
United States, to wit: health care and mail fraud, in violation
of 18 U.S.C. § 371 (2006) (“Count One”); aggravated identity
theft and aiding and abetting, in violation of 18 U.S.C.
§§ 1028A, 2 (2006) (“Count Two”); and failure to collect and pay
over payroll taxes and aiding and abetting, in violation of 26
U.S.C. §§ 7202, 2 (“Count Three”) (2006). The district court
sentenced Boone to 144 months of imprisonment, consisting of 60
months on Counts One and Three and 44 months on Count Two, all
to be served consecutively. This appeal timely followed.
Boone first asserts there was an insufficient factual
basis to support her guilty plea to aggravated identity theft
because she was not convicted under one of the statutory
sections or chapters enumerated in 18 U.S.C. § 1028A(c). Thus,
Boone contends, the district court committed plain error in
accepting the guilty plea to Count Two. Boone next argues her
attorney was ineffective during the sentencing phase because he
failed to object, pursuant to United States v. Llamas, 599 F.3d
381 (4th Cir. 2010), to the two sentencing enhancements
predicated on the vulnerability of the victims of Boone’s fraud.
Claiming that counsel’s ineffectiveness is evident on the face
of the record, Boone asks this court to vacate her sentence and
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to remand for resentencing. For the reasons that follow, we
reject these contentions and affirm.
Boone pled guilty to knowingly possessing and using,
without lawful authority, a means of identification of another
person, during and in relation to the commission of health care
fraud, in violation of 18 U.S.C.A. § 1347 (West 2000 and Supp.
2011). On appeal, Boone contends that the aggravated identity
theft statute, 18 U.S.C. § 1028A, requires that “a defendant
must be convicted of the predicate felony during which the
identification was used before section 1028A is triggered.”
(Appellant’s Br. at 7) (emphasis added). Because she was
convicted of violating 18 U.S.C. § 371, which is not enumerated
in 18 U.S.C. § 1028A(c), Boone contends there was an
insufficient factual basis for her guilty plea.
Boone’s argument, however, is contrary to the plain
wording of the statute. Subsection (a) discusses only a “felony
violation” of any of the enumerated provisions in subsection
(c). 18 U.S.C. § 1028A(a). Subsection (c), in turn, defines a
“felony violation enumerated in subsection (c)” to mean “any
offense that is a felony violation of” the enumerated statutory
sections and chapters. 18 U.S.C. § 1028A(c) (emphasis added).
Because the statutory text does not support Boone’s contention
that there must be a conviction on the predicate felony offense,
we must reject this argument. See Conn. Nat’l Bank v. Germain,
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503 U.S. 249, 253–54 (1992) (reiterating the judicial canon that
“courts must presume that a legislature says in a statute what
it means and means in a statute what it says there”); Ignacio v.
United States, __ F.3d. __, 2012 WL 887594, at *5 (4th Cir.
Mar. 16, 2012) (“[A]bsent an ambiguity in the words of a
statute, our analysis begins and ends with the statute’s plain
language.”). We thus conclude there was no error, let alone
plain error, 1 in the district court’s accepting Boone’s guilty
plea to Count Two. 2
Boone next contends her sentence should be vacated
because counsel rendered constitutionally deficient assistance
prior to and during sentencing. Specifically, Boone claims
1
Even if we were to conclude there was error, that error
cannot be considered “plain” in the absence of any controlling
contrary Fourth Circuit or Supreme Court authority. See United
States v. Maxwell, 285 F.3d 336, 341-42 (4th Cir. 2002). In
fact, there is a dearth of precedential support for Boone’s
argument. Although Boone relies on United States v. Luke, 628
F.3d 114 (4th Cir. 2010), the Luke court did not rule that the
“during and in relation to any felony violation” clause mandates
a conviction on the predicate felony offense. Cf. Luke, 628
F.3d at 123. The “felony violation” here was the offense of
health care fraud, which is encompassed by § 1028A(c)(1). See
United States v. Abdelshafi, 592 F.3d 602, 607 (4th Cir. 2010)
(“[C]onvictions for health care fraud qualif[y] as predicate
felony offenses under 18 U.S.C. § 1028A(c)(1).”).
2
This analysis renders moot Boone’s related contention that
the predicate conviction must be a “substantive offense of
conviction, not merely the object of a general conspiracy
charge.” (Appellant’s Br. at 10) (relying on United States v.
Phan, 121 F.3d 149, 152-53 (4th Cir. 1997)).
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counsel should have objected to the two enhancements based on
the vulnerable victims of the fraud, because the presentence
report (“PSR”) lacked particularized findings regarding the
victims’ unusual vulnerability and Boone’s knowledge thereof.
Central to Boone’s argument is this court’s decision
in Llamas, where we held that, to apply the vulnerable victim
enhancement under U.S. Sentencing Guidelines Manual (“USSG”)
§ 3A1.1(b)(1), the “sentencing court must determine that a
victim was unusually vulnerable. . . . [and] then assess whether
the defendant knew or should have known of such unusual
vulnerability.” 599 F.3d at 388. This court accepted the
proposition that, for the enhancement to apply, the sentencing
court must offer “‘a fact-based explanation of why advanced age
or some other characteristic made one or more victims unusually
vulnerable to the offense conduct.’” Llamas, 599 F.3d at 388(quoting United States v. Vega-Iturrino, 565 F.3d 430, 434 (8th
Cir. 2009)). Boone maintains that counsel’s failure to object
based on Llamas amounts to per se deficient performance, because
the specific facts necessary to support the enhancement were
absent from the PSR and the court made no such factual findings
at sentencing. Furthermore, the omission was prejudicial to
Boone because the enhancements resulted in two two-level
increases to her adjusted offense level and the elevated
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Guidelines range, in turn, triggered the use of USSG § 5G1.2(d)
to impose consecutive sentences.
Boone aptly acknowledges that claims of ineffective
assistance of counsel generally are not cognizable on direct
appeal unless the record conclusively establishes counsel’s
“objectively unreasonable performance” and resulting prejudice.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
Instead, ineffective assistance of counsel claims are most
appropriately pursued in a motion under 28 U.S.C.A. § 2255 (West
Supp. 2011) to allow for adequate development of the record.
See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir.
2010). The record here does not conclusively establish that
counsel’s failure to assert the objection amounts to deficient
performance, i.e., “performance . . . ‘below an objective
standard of reasonableness’ measured by ‘prevailing professional
norms.’” United States v. Higgs, 663 F.3d 726, 735 (4th Cir.
2011) (quoting Strickland v. Washington, 466 U.S. 668, 688
(1984)). Given the opportunity in a § 2255 proceeding, counsel
may provide a sound and reasonable explanation for not making
the Llamas objection that is not readily discernible from the
record in its present form. We therefore decline to consider
Boone’s ineffective assistance of counsel claim at this
juncture.
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For these reasons, we affirm the district court’s
judgment. Further, we deny Boone’s motion for 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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