United States v. Ashworth

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4196
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARILYN SWINTON ASHWORTH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CA-04-295)
Submitted: August 9, 2006 Decided: September 7, 2006
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
K. E. Krispen Culbertson, CULBERTSON & ASSOCIATES, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Kearns Davis, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Marilyn Swinton Ashworth appeals her forty-one month
prison sentence imposed pursuant to her guilty plea to bank fraud,
in violation of 18 U.S.C. § 1344(2) (2000). Ashworth does not
appeal her conviction. Finding no reversible error, we affirm.
Ashworth contends that the district court improperly
sentenced her when it imposed a sentence greater than the maximum
authorized by the facts she admitted in violation of United
States v. Booker, 543 U.S. 220 (2005). Because she failed to raise
this claim below, we review it for plain error. United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To meet the plain error
standard: (1) there must be an error; (2) the error must be plain;
and (3) the error must affect substantial rights. United States v.
Olano, 507 U.S. 725, 732-34 (1993). If the three elements of the
plain error standard are met, the court may exercise its discretion
to notice error only if the error seriously affects “the fairness,
integrity, or public reputation of judicial proceedings.” Id. at
736 (citation omitted).
At sentencing, Ashworth had a base offense level of six,
pursuant to U.S. Sentencing Guidelines Manual § 2B1.1(a) (2005).
Ashworth admitted that the loss was more than $200,000 but less
than $400,000, resulting in a twelve offense level increase under
USSG § 2B1.1(b)(1)(G). The district court also added two offense
levels under USSG § 3A1.1(B)(1) because Ashworth knew or should
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have known that her victim was unusually vulnerable, yielding an
adjusted offense level of twenty. With a criminal history category
of I, Ashworth had a guideline range of thirty-three to forty-one
months’ imprisonment. The district court sentenced her to
forty-one months’ imprisonment. Without the enhancement for a
vulnerable victim, the total offense level would be eighteen and
the applicable guideline range would be twenty-seven to
thirty-three months’ imprisonment. Ashworth’s forty-one month
prison sentence thus exceeded the sentence that could have been
imposed based only on the facts admitted.
Nevertheless, the evidence supporting the vulnerable
victim enhancement was overwhelming and essentially uncontroverted.
In United States v. Cotton, 535 U.S. 625 (2002), the Supreme Court
held that when the evidence of a sentencing factor was overwhelming
and essentially uncontroverted, there was no basis to conclude the
error seriously affected the fairness, integrity, or public
reputation of judicial proceedings on plain error review. Id. at
633; United States v. Smith, 441 F.3d 254, 272 (4th Cir. 2006)
(applying Cotton after Booker). USSG § 3A1.1(b)(1) adds two
offense levels “if the defendant knew or should have known that a
victim of the offense was a vulnerable victim.” The definition of
“vulnerable victim” includes those who are “unusually vulnerable
due to age, physical, or mental condition.” USSG § 3A1.1(b)(1)
n.2. Ashworth, a nurse assistant at a retirement community, stole
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the personal information of Clara Morris, an 88-year-old resident.
Ashworth took advantage of the vulnerabilities of Morris to steal
$289,242.48 from Morris’ bank account.1 The evidence that Ashworth
stole from a vulnerable victim was overwhelming and essentially
uncontroverted and there is no basis to conclude the error
seriously affected the fairness, integrity, or public reputation of
the judicial proceedings. The district court thus did not commit
reversible error under Booker when it sentenced Ashworth using the
vulnerable victim enhancement.
The district court’s treatment of the sentencing
guidelines as mandatory also does not require resentencing. While
the district court erred in treating the guidelines as mandatory,2
see United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005),
we have held that in the plain error context, the error of
sentencing under the mandatory guidelines regime does not warrant
a presumption of prejudice. United States v. White, 405 F.3d 208,
224 (4th Cir. 2005). Ashworth cannot satisfy the prejudice
requirement of the plain error standard. Nothing in the record
suggests the error in applying the guidelines as mandatory affected
1
Morris’ credit union and their insurer were also victims in
this case and neither was a vulnerable victim. However, USSG
§ 3A1.1(b)(1) does not require that all victims be vulnerable, just
that “a victim” was vulnerable.
2
This conclusion implies no criticism of the able district
judge who conducted Ashworth’s sentencing proceeding in full
compliance with the law and procedure in effect at the time.
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the court’s ultimate determination of Ashworth’s sentence or
affected her substantial rights.
Accordingly, we affirm the judgment of the district
court. 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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