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United States v. Gatling, 08-5242 (2009)

Court: Court of Appeals for the Fourth Circuit Number: 08-5242 Visitors: 58
Filed: Dec. 11, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5242 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KINYA LAVETTE GATLING, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. Patrick Michael Duffy, District Judge. (2:08-cr-00573-PMD-1) Submitted: November 13, 2009 Decided: December 11, 2009 Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. J. Robert Haley,
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                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5242


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

KINYA LAVETTE GATLING,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (2:08-cr-00573-PMD-1)


Submitted:    November 13, 2009            Decided:   December 11, 2009


Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant.     Eric John Klumb, Assistant
United   States  Attorney,  Charleston,  South   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Pursuant to a plea agreement, Kinya Lavette Gatling

pled guilty to aggravated identity theft, in violation of 18

U.S.C.   § 1028A(1)(A)         (2006).         The   district     court    sentenced

Gatling to twenty-four months in prison.                    Gatling appeals her

conviction      and     sentence.      Her      attorney    has    filed   a     brief

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

no meritorious grounds for appeal but challenging the adequacy

of the Fed. R. Crim. P. 11 hearing and questioning whether the

sentence imposed by the district court was reasonable.                         Gatling

was advised of her right to file a pro se supplemental brief,

but she did not file one.           We affirm.

              Because Gatling did not move in the district court to

withdraw her guilty plea, any error in the Rule 11 hearing is

reviewed for plain error.            United States v. Martinez, 
277 F.3d 517
, 525 (4th Cir. 2002) (discussing standard).                       Our careful

review   of    the    record    convinces       us   that   the    district     court

substantially complied with the mandates of Rule 11 in accepting

Gatling’s guilty plea and ensured that Gatling entered her plea

knowingly and voluntarily and that the plea was supported by an

independent factual basis.            See United States v. DeFusco, 
949 F.2d 114
, 116, 119-20 (4th Cir. 1991).

              Turning    to    Gatling’s       sentencing   challenge,      § 1028A

prescribes a mandatory two-year penalty for aggravated identity

                                           2
theft.    The district court possessed no discretion to sentence

below the statutory mandatory sentence.                         Cf. United States v.

Robinson, 
404 F.3d 850
, 862 (4th Cir. 2005) (holding that, even

after United      States      v.    Booker,       
543 U.S. 220
   (2005),      “judges

cannot depart below a statutorily provided minimum sentence”).

“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).         We       conclude       that    the

statutorily-prescribed sentence imposed by the district court is

reasonable.

            In accordance with Anders, we have reviewed the entire

record    for    any    meritorious          issues        and       have       found     none.

Accordingly,     we    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        that       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

                                             3

Source:  CourtListener

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