Filed: Jan. 04, 2011
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4127 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. STACY LYNN OLIVER, Defendant – Appellant. No. 10-4132 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. STACY OLIVER, Defendant – Appellant. Appeals from the United States District Court for the District of South Carolina, at Greenville and Rock Hill. Henry M. Herlong, Jr., Senior District Judge. (6:09-cr-00781-HMH-1; 0:03-cr-00358-HMH-1) Submitted: November 12, 2010
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4127 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. STACY LYNN OLIVER, Defendant – Appellant. No. 10-4132 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. STACY OLIVER, Defendant – Appellant. Appeals from the United States District Court for the District of South Carolina, at Greenville and Rock Hill. Henry M. Herlong, Jr., Senior District Judge. (6:09-cr-00781-HMH-1; 0:03-cr-00358-HMH-1) Submitted: November 12, 2010 D..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4127
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STACY LYNN OLIVER,
Defendant – Appellant.
No. 10-4132
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STACY OLIVER,
Defendant – Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Greenville and Rock Hill. Henry M.
Herlong, Jr., Senior District Judge. (6:09-cr-00781-HMH-1;
0:03-cr-00358-HMH-1)
Submitted: November 12, 2010 Decided: January 4, 2011
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles T. Brooks, III, THE BROOKS LAW OFFICES, LLC, Sumter,
South Carolina; John H. Hare, Assistant Federal Public Defender,
Columbia, South Carolina, for Appellant. William N. Nettles,
United States Attorney, William J. Watkins, Jr., Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated cases, Stacy Lynn Oliver appeals
the revocation of supervised release on a 2004 conviction of
wire fraud, 18 U.S.C.A. § 1343 (West Supp. 2010), and a new,
thirty-seven-month sentence imposed on his guilty plea to
unauthorized use of a credit card, in violation of 18 U.S.C.
§ 1029(a)(2) (2006). Oliver raises three claims challenging the
unauthorized use conviction; he raises no issues concerning the
revocation of supervised release. We affirm in both appeals.
Oliver’s supervised release on his 2004 wire fraud
conviction commenced in May 2006. In 2007, the probation office
notified the district court that Oliver had violated the terms
of his supervised release, but recommended taking no action
until the pending state charges were adjudicated. Oliver was
convicted and sentenced by North Carolina for those offenses,
which included credit card fraud, in May 2008.
In July 2009, Oliver was indicted in federal court for
a single count of unauthorized use of credit cards (“the
unauthorized use conviction”). The same day, a writ of habeas
corpus ad prosequendum was issued to the North Carolina
Department of Corrections, where Oliver had been serving his
state sentence. Oliver was brought to the District of South
Carolina and housed at Just Care, a private hospital facility
that treats prisoners, in order to accommodate Oliver’s need for
3
dialysis. While at Just Care, Oliver continued to engage in
fraudulent financial transactions, defrauding both Just Care and
TNB Card Services.
Before trial, Oliver came to an oral agreement with
the Government wherein Oliver agreed to plead guilty, and in
exchange, the Government agreed that: First, it would not charge
Oliver for the fraud committed at Just Care, but the amount of
the fraud would be added to his restitution amount; second, the
Government would not object to the sentence for his supervised
release violation running concurrently with the sentence on the
indictment; and third, if Oliver convinced the state to permit
him to serve the remainder of his state sentence in federal
custody, the Government would not object. The district court
asked Oliver and his attorney whether that was the agreement as
they understood it, and they both confirmed that it was.
The district court ordered Oliver to pay restitution,
and it imposed a sentence of twenty-four months’ imprisonment
for Oliver’s violation of the terms of his supervised release,
to run concurrently with a thirty-seven-month sentence for
Oliver’s credit card fraud offense. The district court made
clear that the sentence was to run consecutively with Oliver’s
state sentence. Oliver noted a timely appeal.
Oliver argues that his sentence on the unauthorized
use conviction was procedurally unreasonable. This court
4
reviews a sentence for reasonableness, applying a deferential
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). Our review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
United States v. Lynn,
592 F.3d 572, 575 (4th Cir. 2010). The
first step requires that we determine whether the district court
committed any significant procedural error, ensuring that the
district court properly calculated the defendant’s advisory
Guidelines range, that it considered the factors enumerated in
18 U.S.C. § 3553(a) (2006) and any arguments presented by the
parties, that it based the sentence on an individualized
assessment, and that it adequately explained the sentence
imposed. See
Gall, 552 U.S. at 50-51;
Lynn, 592 F.3d at 575;
United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009).
In reviewing the substantive reasonableness, this
court considers the “totality of the circumstances, including
the extent of any variance from the Guidelines range.” Gall,
552 U.S. at 51; United States v. Pauley,
511 F.3d 468, 473
(4th Cir. 2007). Oliver has not challenged the substantive
reasonableness of his sentence, and his within-Guidelines
sentence is afforded an appellate presumption of reasonableness.
See United States v. Abu Ali,
528 F.3d 210, 261 (4th Cir. 2008).
Oliver first asserts that the district court failed to
consider his objections to the presentence report (“PSR”) for
5
the unauthorized use conviction. The sentencing hearing
reflects that there was some tension between Oliver and his
attorney. However, the district court did not err in failing to
consider objections to the PSR because no objections were
raised. Although Oliver stated that he wanted to file an
objection to the PSR, he could not identify any objections in
even the most general terms. Nor could Oliver’s attorney point
to any possible grounds for objection. Because the district
court was not presented with any objections, and had no reason
to believe that granting Oliver more time would yield any, it
did not err in failing to consider objections to the PSR. *
Next, Oliver argues that the district court failed
state a sufficiently particularized basis for the sentence
imposed because it failed to explain its denial of his request
that his federal sentence run concurrently with his state
sentence.
While district judges must provide a particularized
assessment justifying the sentence imposed in each case, they
need not “robotically tick through § 3553(a)’s every
subsection.” United States v. Johnson, 445 F.3d 339, 345
(4th Cir. 2006). Moreover, “when a judge decides simply to
*
We note that, even on appeal, Oliver has not identified
any potential errors in the PSR, nor has he given any indication
as to what his objections might have been.
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apply the Guidelines to a particular case, doing so will not
necessarily require lengthy explanation.” Rita v. United
States, 551 U.S. 338, 356 (2007);
Lynn, 592 F.3d at 576. A
properly preserved claim of procedural error is subject to
reversal, unless the error was harmless.
Id. The government
can establish harmless error by showing that the error had no
significant, injurious impact on the sentence. United States v.
Boulware,
604 F.3d 832, 838 (4th Cir. 2010).
Here, the district court stated that it considered the
§ 3553(a) factors, considered the Guidelines as advisory, and
concluded that the within-Guidelines sentence of thirty-seven
months and payment of restitution satisfied the purposes of the
statute. The district court made clear that its decision
adopted “the Commission’s own reasoning that the Guidelines
sentence is a proper sentence.” See Rita, 551 U.S. at 357.
The district court also adequately explained its
denial of Oliver’s request that his federal sentence run
concurrently with his state sentence. The record suggests that
Oliver either misrepresented or may not have accurately recalled
the terms of the oral plea agreement to which he assented at his
rearraignment. The possibility of the latter circumstance is
among the reasons we have previously stated that it “behooves
the government to reduce all oral pleas to writing.” United
States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997).
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Nevertheless, this court enforces oral plea agreements. See
United States v. Iaquinta, 719 F.2d 83, 84 n.2 (4th Cir. 1983).
We are satisfied that the terms of the oral plea agreement, as
reflected in the transcript of the rearraignment, are
sufficiently clear and unambiguous, and that Oliver understood
those terms when he entered the plea. Moreover, Oliver
indicated when he entered his plea that he understood that the
district court was not bound by the terms of the plea agreement.
Therefore, this claim entitles Oliver to no relief.
Finally, Oliver argues that his attorney was laboring
under a conflict of interest because Oliver had not paid him,
and that the district court erred in failing to hold a hearing
to inquire into the possibility of a conflict of interest.
The Sixth Amendment right to effective assistance of
counsel includes a duty of loyalty by counsel “that requires the
attorney to remain free from conflicts of interest.”
Stephens v. Branker, 570 F.3d 198, 208 (4th Cir. 2009).
However, where a defendant identifies the mere possibility of a
conflict, that potential “may not, in practice, contravene this
duty of loyalty.”
Id. In order to prevail, a defendant must
show that his attorney labored under an actual conflict of
interest that adversely affected the lawyer’s performance.
Id.
at 209. To establish the existence of an actual conflict of
interest, Oliver “must show that [his] interests ‘diverge[d]
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[from his attorney’s] with respect to a material factual or
legal issue or to a course of action.’” Id. (quoting Gilbert v.
Moore,
134 F.3d 642, 652 (4th Cir. 1998) (en banc) (alterations
in original)).
On this record, Oliver has not established an actual
conflict. A fee dispute does not ordinarily establish an actual
conflict because courts “presume that counsel will continue to
execute [their] professional and ethical duty to zealously
represent [their] client[s], notwithstanding the fee dispute.”
United States v. O’Neil, 118 F.3d 65, 72 (2d Cir. 1997); see
Caderno v. United States,
256 F.3d 1213, 1218-19
(11th Cir. 2001) (finding failure to pay counsel showed only
possibility of conflict of interest, not actual conflict, though
counsel’s letters to defendant indicated his frustration at not
being paid).
Turning to Oliver’s argument that the district court
should have held a hearing to determine whether there was an
actual conflict, the Supreme Court has required such an inquiry
when “the trial court knows or reasonably should know that a
particular conflict exists.” Cuyler v. Sullivan, 446 U.S. 335,
347 (1980). However, this is “not to be confused with when the
trial court is aware of a vague, unspecified possibility of
conflict.” Mickens v. Taylor,
535 U.S. 162, 168-69 (2002). In
Mickens, the Supreme Court held that, even where a trial court
9
fails to inquire into a potential conflict of interest about
which it knew or should reasonably have known, a defendant must
still establish that the conflict adversely affected his
counsel’s performance. Id. at 170-73.
Here, neither an actual conflict nor an adverse impact
on Oliver’s counsel appears conclusively from the record. See
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006)
(noting ineffective assistance only cognizable on direct appeal
when it appears conclusively from the record). To allow for
adequate development of the record, Oliver’s claim is more
appropriately raised in a 28 U.S.C.A. § 2255 (West. Supp. 2010)
motion. United States v. Baptiste,
596 F.3d 214, 216-17 n.1
(4th Cir. 2010).
Accordingly, we affirm Oliver’s convictions and
sentences. 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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