Filed: May 18, 2009
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-5080 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. LILLIAN PAIR, Defendant – Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:07-cr-00030-DCN-1) Submitted: April 23, 2009 Decided: May 18, 2009 Before KING, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Russell W. Mace, III, THE MACE FIRM, Myrtle
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-5080 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. LILLIAN PAIR, Defendant – Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (2:07-cr-00030-DCN-1) Submitted: April 23, 2009 Decided: May 18, 2009 Before KING, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Russell W. Mace, III, THE MACE FIRM, Myrtle ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5080
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LILLIAN PAIR,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:07-cr-00030-DCN-1)
Submitted: April 23, 2009 Decided: May 18, 2009
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. Michael Rhett DeHart, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lillian Pair pled guilty, pursuant to a plea
agreement, to one count of wire fraud in violation of 18 U.S.C.
§ 1343 (2006). The district court sentenced Pair to seventy-two
months’ imprisonment, which fell within Pair’s advisory
guidelines range. Pair timely noted her appeal and counsel has
filed a brief pursuant to Anders v. California,
386 U.S. 738
(1967). In the brief, counsel suggests that the district court
erred in applying a two-level vulnerable victim enhancement and
that the sentence is unreasonable because the district court
failed to properly consider the 18 U.S.C. § 3553(a) (2006)
factors or her sentencing memorandum and argument. Pair was
advised of her right to file a pro se supplemental brief, but
has not filed a brief. We have reviewed the record and affirm.
In the district court, Pair failed to object to the
presentence report and the two-level vulnerable victim
adjustment. Accordingly, her claim is reviewed for plain error.
United States v. Grubb,
11 F.3d 426, 440-41 (4th Cir. 1993).
Plain error requires Pair to establish that: (1) there was
error; (2) the error was “plain;” and (3) the error affected her
substantial rights. United States v. Olano,
507 U.S. 725, 732
(1993). Even if she makes this showing, “Rule 52(b) leaves the
decision to correct the forfeited error within the sound
discretion of the court of appeals, and the court should not
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exercise that discretion unless the error seriously affect[s]
the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quoting United States v. Young,
470 U.S. 1,
15 (1985) (internal quotations omitted)). Pair fails to
establish plain error.
The U.S. Sentencing Guidelines Manual (“USSG”)
provides for a two-level increase to a defendant’s base offense
level if “the defendant knew or should have known that a victim
of the offense was a vulnerable victim.” USSG § 3A1.1(b)(1)
(2008). A vulnerable victim is a person who is a victim of the
offense and “is unusually vulnerable due to age, physical or
mental condition, or who is otherwise particularly susceptible
to the criminal conduct.” USSG § 3A1.1, comment. (n.2). In
order to impose the two-level enhancement for a vulnerable
victim, the district court must find that the victim was
unusually vulnerable and that the defendant “targeted” the
victim because of the victim’s unusual vulnerability. United
States v. Singh,
54 F.3d 1182, 1191 (4th Cir. 1995). We have
reviewed the record and determine that the facts in the
presentence report support the enhancement. Accordingly, Pair
fails to establish that the district court committed plain error
in imposing the vulnerable victim enhancement.
Pair next alleges that her sentence is unreasonable
because the district court failed to sufficiently consider the
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18 U.S.C. § 3553(a) factors or her sentencing memorandum. A
district court need not robotically tick through each subsection
of § 3553(a). United States v. Johnson,
445 F.3d 339, 345
(4th Cir. 2006). Rather, in sentencing, a district court need
only set forth enough information to satisfy the appellate court
that it has considered the parties’ arguments and has a reasoned
basis for exercising its own legal decisionmaking authority.
Rita v. United States,
551 U.S. 338, __,
127 S. Ct. 2456, 2469
(2007). Here, the district court stated explicitly that it had
considered the advisory guidelines and the § 3553(a) factors.
Moreover, nothing in the record indicates that the district
court ignored or failed to consider Pair’s sentencing
memorandum, allocution, or argument. We accordingly discern no
procedural or substantive infirmity in the sentence imposed by
the district court.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Pair’s conviction and sentence. This court
requires that counsel inform Pair, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Pair requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
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representation. Counsel’s motion must state that a copy thereof
was served on Pair.
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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