United States v. Lena Gant

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4769
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LENA GANT,
Defendant - Appellant.
No. 12-4946
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHANNON FISHBURNE,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Charleston. David C. Norton, District
Judge. (2:12-cr-00119-DCN-1, 2:12-cr-00119-DCN-3)
Submitted: May 14, 2013 Decided: July 23, 2013
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant Lena Gant; Timothy Kirk Truslow,
THE TRUSLOW LAW FIRM, LLC, North Myrtle Beach, South Carolina,
for Appellant Shannon Fishburne. Dean Hodge Secor, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Lena Gant and Shannon Fishburne pled guilty, pursuant
to plea agreements, to conspiracy to defraud the United States,
in violation of 18 U.S.C. § 371 (2006). The court sentenced
Fishburne to eighteen months’ imprisonment and three years’
supervised release and imposed $39,196.35 in restitution. The
court originally sentenced Gant to twenty-seven months’
imprisonment and five years’ supervised release and imposed
$133,175.25 in restitution but later sua sponte amended the
judgment, while the appeal was pending, to impose the statutory
maximum term of supervised release of three years. On appeal,
counsel have 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 the district court complied
with Fed. R. Crim. P. 11 in accepting Appellants’ pleas and
whether Appellants’ sentences are reasonable. Appellants were
advised of their right to file pro se supplemental briefs, but
they did not do so. We affirm.
Because Appellants did not move in the district court
to withdraw their guilty pleas, our review of their Rule 11
hearings is for plain error. United States v. Martinez, 277
F.3d 517, 525-26 (4th Cir. 2002); see United States v.
Massenburg, 564 F.3d 337, 343 (4th Cir. 2009) (providing plain
error standard in context of guilty pleas). After reviewing the
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Rule 11 hearings pursuant to Anders, we conclude that the
district court substantially complied with the requirements of
Rule 11, failing only to inform Appellants of their right to
persist in their pleas of not guilty, and that this minor
omission did not affect Appellants’ substantial rights. See
Massenburg, 564 F.3d at 344 (holding that “mere existence of an
error cannot satisfy the requirement that [defendants] show that
[their] substantial rights were affected”); United States v.
Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (holding that
district court’s failure to provide requisite information in
Rule 11 hearing is harmless error where defendant was advised of
omitted information through another means before hearing).
We review Appellants’ sentences for reasonableness
under a deferential abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 41 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of the sentences. Id. at 51. After reviewing
the sentencing transcripts pursuant to Anders, we conclude that
the sentences are procedurally reasonable, as the district court
properly calculated Appellants’ applicable Guidelines ranges,
gave each party the opportunity to present argument and to
allocute, considered the 18 U.S.C. § 3553(a) (2006) factors, and
sufficiently explained the selected sentences. See Gall, 552
U.S. at 49-51 (listing factors for court to consider when
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determining procedural reasonableness). Moreover, we conclude
that Appellants’ within-Guidelines sentences are substantively
reasonable. See United States v. Mendoza-Mendoza, 597 F.3d 212,
217 (4th Cir. 2010) (holding that, on appeal, within-Guidelines
sentences are presumptively reasonable); United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (holding that
defendants bear burden of showing “that the sentence[s are]
unreasonable when measured against the § 3553(a) factors”
(internal quotation marks omitted)).
In accordance with Anders, we have reviewed the record
in these cases and have found no meritorious issues for appeal.
We therefore affirm the criminal judgment against Fishburne and
the amended criminal judgment against Gant. This court requires
that counsel inform their clients, in writing, of the right to
petition the Supreme Court of the United States for further
review. If either 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 his client.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before this court and argument would not aid the decisional
process.
AFFIRMED
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