Filed: Nov. 24, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4380 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TAMMY HENDERSON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. G. Ross Anderson, Jr., District Judge. (7:07-cr-01206-GRA-1) Submitted: October 22, 2008 Decided: November 24, 2008 Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. David W. Plowden, As
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4380 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TAMMY HENDERSON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. G. Ross Anderson, Jr., District Judge. (7:07-cr-01206-GRA-1) Submitted: October 22, 2008 Decided: November 24, 2008 Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. David W. Plowden, Ass..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4380
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAMMY HENDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., District
Judge. (7:07-cr-01206-GRA-1)
Submitted: October 22, 2008 Decided: November 24, 2008
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. David Calhoun Stephens,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tammy Henderson appeals the district court’s judgment
entered pursuant to her guilty plea to conspiracy to make and
possess counterfeit securities, in violation of 18 U.S.C. § 513
(2000). Counsel for Henderson filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he asserts
there are no meritorious issues for appeal, but asks this court
to review whether the district court committed plain error in
determining Henderson’s sentence. Henderson filed a pro se
supplemental brief in which she asserts a number of errors in
her presentence report (“PSR”) and the resulting Sentencing
Guidelines range. Finding no error, we affirm.
Following United States v. Booker, 543 U.S. 220
(2005), a district court must engage in a multi-step process at
sentencing. First, it must calculate the appropriate advisory
Guidelines range. It must then consider the resulting range in
conjunction with the factors set forth in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2008) and determine an appropriate sentence.
Gall v. United States,
128 S. Ct. 586, 596 (2007). We review
the district court’s imposition of a sentence for abuse of
discretion.
Id. at 597; see also United States v. Pauley,
511
F.3d 468, 473 (4th Cir. 2007). This court “must first ensure
that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating)
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the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence--including an explanation for any
deviation from the Guidelines range.” Gall, 128 S. Ct. at 597.
If there are no procedural errors, we then consider
the substantive reasonableness of the sentence. Id.
“Substantive reasonableness review entails taking into account
the totality of the circumstances, including the extent of any
variance from the Guidelines range.”
Pauley, 511 F.3d at 473
(internal quotation marks and citation omitted). Further, this
court may presume a sentence within the Guidelines range to be
reasonable.
Id. Mere disagreement with the district court’s
exercise of sentencing discretion does not permit us to
substitute our judgment for that of the lower court.
Id. at
473-74. “Even if we would have reached a different sentencing
result on our own, this fact alone is ‘insufficient to justify
reversal of the district court.’”
Id. at 474 (quoting Gall, 128
S. Ct. at 597).
Following the probation officer’s preparation of the
PSR, Henderson objected to the calculation of the intended loss
amount, as well as to the inclusion of a two-level offense level
enhancement for possession or use of device-making equipment,
pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
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§ 2B1.1(10)(A)(i) (2007), and a two–level enhancement for
Henderson’s role as a leader, manager, or supervisor, pursuant
to USSG § 3B1.1(c). At the sentencing hearing, Henderson
indicated that all of the objections had been resolved with the
Government, as the parties agreed that the two-level enhancement
for possession or use of device-making equipment should be
removed, resulting in a total offense level of ten and a
Sentencing Guidelines range of 24 to 30 months. Henderson
received a 30-month sentence.
In her pro se brief, Henderson asserts that the PSR
used by the district court at sentencing did not reflect the
removal of the enhancement for possession or use of device-
making equipment and that, as a result, she received a harsher
sentence based on this allegation of “white-collar thievery.”
However, there is no indication in the record that Henderson
received a longer sentence due to an enhancement that was
brought to the court’s attention and was withdrawn prior to
sentencing. Pursuant to Fed. R. Crim. P. 32(i)(1)(C), the
district court properly permitted the parties to comment on the
findings in the PSR and to notify the court that the enhancement
for device-making equipment was erroneously included in the
Guidelines calculation and should be removed. Accordingly,
Henderson’s claim is without merit.
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Henderson also contends the district court improperly
calculated the intended loss amount and erroneously included a
two–level enhancement for her role as a leader, manager, or
supervisor. While she originally objected to the PSR’s findings
in regards to these two issues, Henderson stated at sentencing
that those objections had been resolved with the Government.
Accordingly, with no disputed issues presented at the sentencing
hearing, the district court properly accepted the undisputed
portions of the PSR as findings of fact. See Fed. R. Crim. P.
32(i)(3)(A). Because Henderson failed to raise any objections
to the PSR, the district court did not err in determining the
intended loss amount or imposing the leadership enhancement
without requiring the Government to prove the underlying facts.
Finally, in her Anders brief, Henderson contends that
she received an unreasonable sentence. At the sentencing
hearing, the district court appropriately treated the Guidelines
as advisory, considered the relevant factors under § 3553(a),
and sentenced Henderson within the properly calculated
Guidelines range. Because Henderson has failed to demonstrate
her sentence is either procedurally or substantively
unreasonable, we find that the sentence imposed by the district
court was reasonable and should be affirmed.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
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We therefore affirm the district court’s judgment. This court
requires that counsel inform his client, in writing, of her
right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
filed, but counsel believes 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 the client. 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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