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United States v. Anderson, 09-4598 (2010)

Court: Court of Appeals for the Fourth Circuit Number: 09-4598 Visitors: 19
Filed: May 05, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4598 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARY ALICE ANDERSON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. G. Ross Anderson, Jr., Senior District Judge. (7:09-cr-00025-GRA-1) Submitted: March 29, 2010 Decided: May 5, 2010 Before NIEMEYER, MICHAEL, 1 and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Benjamin T. Step
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                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4598


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARY ALICE ANDERSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   G. Ross Anderson, Jr., Senior
District Judge. (7:09-cr-00025-GRA-1)


Submitted:   March 29, 2010                   Decided:   May 5, 2010


Before NIEMEYER, MICHAEL, 1 and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Benjamin    T.   Stepp,  Assistant   Federal   Public   Defender,
Greenville, South Carolina, for Appellant.   Maxwell B. Cauthen,
III,   Assistant   United States   Attorney,  Greenville,   South
Carolina, for Appellee.



     1
       Judge Michael was a member of the original panel but did
not participate in this decision.    This opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Mary     Alice      Anderson       pled      guilty        without     a     plea

agreement to four counts of fraudulently using social security

numbers, 42 U.S.C.A. § 408(a)(7)(B) (West Supp. 2009), and one

count of aggravated identity theft, 18 U.S.C.A. § 1028A(a)(1)

(West Supp. 2009).           She was sentenced to one day, concurrent, on

the   fraudulent      use    charges,     and     two    years,        consecutive,       for

identity theft.         She now appeals.                Her attorney has filed a

brief pursuant to Anders v. California, 
386 U.S. 738
(1967),

questioning        whether     Anderson’s       sentence          is     reasonable       but

stating     that    there     are    no    meritorious        issues        for    appeal.

Anderson was notified of her right to file a pro se supplemental

brief but has not filed such a brief.                   We affirm.

            Our     review     of   the   transcript         of    the    plea     colloquy

discloses     full      compliance         with       Fed.        R.     Crim.     P.     11.

Furthermore, the record reveals that Anderson entered her plea

voluntarily and knowingly and that there was a factual basis for

the plea.      We have identified no meritorious appellate issues

related to the convictions.

            Turning     to     Anderson’s       sentence,         our    review     is    for

reasonableness,        applying       an        abuse-of-discretion               standard.

Gall v. United States, 
552 U.S. 38
, 51 (2007).                              The one-day

sentence on the fraudulent use counts falls within Anderson’s

advisory Guidelines range of 0-6 months; we afford a presumption

                                           3
of    reasonableness                to    this    within-Guidelines              sentence.        See

United       States          v.     Go,    
517 F.3d 216
,     218   (4th     Cir.    2008).

Additionally,            the      consecutive,          two-year      sentence      for   identity

theft was statutorily mandated.                            See 18 U.S.C.A. § 1028A(a)(1),

(b)(2) (West Supp. 2009).                     “A statutorily required sentence . .

. is per se reasonable.”                         United States v. Farrior, 
535 F.3d 210
, 224 (4th Cir.), cert. denied, 
129 S. Ct. 743
(2008).

                  In    sentencing          Anderson,        the     district     court     did   not

apply       the    18        U.S.C.       § 3553(a)        (2006)     sentencing        factors    or

explain the sentence, as Gall requires.                                See 
Gall, 552 U.S. at 51
.         Although          the     court      did       not   “place     on    the    record    an

individualized assessment based on the particular facts before

it,”        United States v. Carter, 
564 F.3d 325
, 330 (4th Cir.

2009), the parties did not object to this error in the district

court. 2      Anderson was not eligible for a sentence of probation.

See 18 U.S.C.A. § 1028A(b)(1) (West Supp. 2009).                                    Further, she

received a sentence at the lowest end of her advisory Guidelines

range       for        the     fraudulent         use       offenses,       and    received       the

statutorily            required          consecutive        sentence      for    identify    theft.

Accordingly,            the       error    did    not       affect    Anderson’s        substantial


        2
        At sentencing, Anderson requested a within-Guidelines
sentence--specifically, a sentence of one day--on the fraudulent
use counts, to be followed by a two-year sentence for identity
theft.



                                                       4
rights, and we decline to recognize it.                 See United States v.

Branch, 
537 F.3d 328
, 343 (4th Cir. 2008) (stating plain error

standard of review), cert. denied, 
129 S. Ct. 943
(2009).

            In accordance with Anders, we have thoroughly reviewed

the record for any meritorious issues and have found none. We

therefore affirm.        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      that    such    a

petition would be frivolous, counsel may move this court for

leave to withdraw from representation.                 Counsel’s motion must

state that a copy of the motion 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




                                        5

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