United States v. Shanda Gilyard

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4003
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHANDA L. GILYARD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Jerome B. Friedman,
Senior District Judge. (4:10-cr-00039-JBF-TEM-1)
Submitted: June 23, 2011 Decided: July 8, 2011
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Timothy V. Anderson, ANDERSON & ASSOCIATES, Virginia Beach,
Virginia, for Appellant. Neil H. McBride, United States
Attorney, Brian J. Samuels, Assistant United States Attorney,
Robert Murdough, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shanda L. Gilyard was convicted by a jury of one count
of conspiracy to commit bank fraud, in violation of 18 U.S.C.
§§ 1344, 1349 (2006) (Count One); seven counts of bank fraud, in
violation of 18 U.S.C. § 1344 (2006) (Counts Two through Eight);
six counts of possessing and uttering counterfeit securities, in
violation of 18 U.S.C. §§ 513(a), 2 (2006) (Counts Nine through
Fourteen); * and one count of aggravated identity theft, in
violation of 18 U.S.C. § 1028A (2006) (Count Fifteen). Gilyard
was sentenced to a total of 192 months’ imprisonment. Gilyard’s
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738, 744 (1967), stating that he found no meritorious issues for
appeal, but questioning whether the district court erred in
denying Gilyard’s post-verdict motions and in adopting the
factual findings contained in the presentence report (“PSR”)
over Gilyard’s objections. Gilyard filed a pro se supplemental
brief also challenging the denial of her post-verdict motions,
which are based on Gilyard’s belief that a witness perjured
himself at trial. Although we affirm Gilyard’s convictions and
*
The judgment erroneously cites 18 U.S.C. § 512(a) (2006)
for these counts of conviction. However, Gilyard was convicted
of violating § 513(a), as charged in the indictment. Because
the judgment does not accurately recite the disposition of this
case, we remand this case to the district court for correction
of the written judgment. See Fed. R. Crim. P. 36.
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sentence, we remand for the purpose of correcting a clerical
error in the judgment. See Fed. R. Crim. P. 36.
Gilyard first challenges the district court’s denial
of her post-verdict motions for substitution of counsel and for
a continuance. Both motions center on Gilyard’s allegation that
a Government witness committed perjury. We review the district
court’s denial of a continuance for abuse of discretion. United
States v. Williams, 445 F.3d 724, 739 (4th Cir. 2006). The
trial court abuses its discretion when its denial of a motion
for continuance is “an unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay.”
Id. Whether to grant a motion for substitution of counsel is
also within the district court’s discretion. United States v.
Reevey, 364 F.3d 151, 156 (4th Cir. 2004).
In evaluating whether the trial court abused its
discretion in denying a defendant’s motion for substitution of
counsel, we consider: (1) the timeliness of the motion; (2) the
adequacy of the court’s inquiry into the defendant’s complaint
about her attorney; and (3) whether the attorney/client conflict
was so great that it resulted in total lack of communication
preventing an adequate defense. Id. We weigh these factors
against the district court’s “interest in the orderly
administration of justice.” Id. at 157. In addition, a
district court has wide latitude in limiting a defendant’s right
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to counsel of choice, based upon fairness and the demands of the
court’s calendar. United States v. Gonzalez-Lopez, 548 U.S.
140, 152 (2006).
We have reviewed the record and find that all three
factors weighed against granting Gilyard’s motion for substitute
counsel. Therefore, we conclude without difficulty that the
district court did not abuse its discretion in denying the
motion. Moreover, because the district court’s ruling was not
arbitrary, the court did not abuse its discretion in denying
Gilyard’s motion for a continuance.
Next, counsel generally questions whether the district
court erred in adopting the PSR’s factual findings over
Gilyard’s objections. However, Gilyard has not made an
affirmative showing that the PSR’s findings are unreliable or
inaccurate. United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990). Therefore, the district court did not err in adopting
the PSR’s factual findings.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
Accordingly, we affirm Gilyard’s convictions and sentence. We
note, however, that the judgment contains a clerical error. The
judgment states that Gilyard was convicted of Counts Nine
through Fourteen under 18 U.S.C. § 512(a). Gilyard, however,
was charged with and convicted of violating 18 U.S.C. § 513(a)
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with respect to these counts of the indictment. We accordingly
remand for the purpose of correcting this clerical error. See
Fed. R. Crim. P. 36.
This court requires that counsel inform Gilyard, in
writing, of her right to petition the Supreme Court of the
United States for further review. If Gilyard requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Gilyard. We dispense with oral
argument because the facts and legal conclusions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED AND REMANDED
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