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United States v. Pair, 07-5080 (2009)

Court: Court of Appeals for the Fourth Circuit Number: 07-5080 Visitors: 15
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Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-5080 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. LILLIAN PAIR, Defendant – Appellant.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 Affirmed by unpublished per curiam opinion.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
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                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                              2
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

                                               3
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



                                              4
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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Source:  CourtListener

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