United States v. Kiki Sherald

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4639
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIKI LEWIS SHERALD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00117-MOC-1)
Submitted: March 5, 2012 Decided: March 15, 2012
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Reggie E. McKnight, MCKNIGHT LAW FIRM, P.L.L.C., Charlotte,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kiki Lewis Sherald pleaded guilty, pursuant to a plea
agreement, to conspiracy to commit mortgage fraud and conspiracy
to commit money laundering, and the district court sentenced him
to thirty-seven months’ imprisonment. Counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious issues for appeal but
asking this court to consider whether the Government engaged in
misconduct by requesting a higher sentence in light of Sherald’s
allocution. Although informed of his right to file a pro se
supplemental brief, Sherald has not done so. We affirm.
“[W]e review for plain error a prosecutorial
misconduct claim that was not raised or presented to the trial
court.” United States v. Alerre, 430 F.3d 681, 689 (4th
Cir. 2005). To succeed on a claim of prosecutorial misconduct,
a defendant must show that the prosecutor’s remarks were
improper and that “the improper remarks so prejudiced the
defendant’s substantial rights that the defendant was denied a
fair trial.” United States v. Lighty, 616 F.3d 321, 359 (4th
Cir. 2010), cert. denied, 132 S. Ct. 451 (2011).
The Government’s argument for a sentence at the top of
the Guidelines range established after a two-level downward
variance was not improper. In selecting a sentence, district
courts are required to consider, among other factors, the
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history and characteristics of the defendant as well as the need
to reflect the seriousness of the offense and promote respect
for the law. 18 U.S.C. § 3553(a) (2006). Accordingly, because
the district court could consider Sherald’s attempt to minimize
the seriousness of his conduct, the Government was permitted to
argue for a sentence based upon Sherald’s apparent lack of
remorse. See, e.g., United States v. Cruzado-Laureano, 527 F.3d
231, 237 (1st Cir. 2008).
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm the district court’s judgment. This court requires that
counsel inform Sherald, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Sherald 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
Sherald. 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
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