Filed: Aug. 02, 2013
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4190 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JESSE J. HAMILTON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Anderson. Mary G. Lewis, District Judge. (8:12-cr-00703-MGL-4) Submitted: July 19, 2013 Decided: August 2, 2013 Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Margaret A. Ch
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4190 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JESSE J. HAMILTON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Anderson. Mary G. Lewis, District Judge. (8:12-cr-00703-MGL-4) Submitted: July 19, 2013 Decided: August 2, 2013 Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Margaret A. Cha..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4190
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JESSE J. HAMILTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Mary G. Lewis, District Judge.
(8:12-cr-00703-MGL-4)
Submitted: July 19, 2013 Decided: August 2, 2013
Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South
Carolina, for Appellant. William Jacob Watkins, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesse J. Hamilton appeals his conviction and sentence
of twelve months and one day of imprisonment, imposed following
his guilty plea to conspiracy to commit mail fraud, in violation
of 18 U.S.C. § 1349 (2006). Hamilton’s counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for review but
questioning whether the district court (1) fully complied with
Fed. R. Crim. P. 11 in conducting Hamilton’s plea colloquy, and
(2) clearly erred in attributing to Hamilton a loss amount of
more than $5000 but less than or equal to $10,000 when
calculating his offense level under the Guidelines. Hamilton
was advised of his right to file a pro se supplemental brief but
has not done so. The Government has declined to file a response
brief. Finding no reversible error, we affirm.
Counsel first questions the sufficiency of the plea
hearing conducted by the district court. Before accepting a
plea, the trial court must conduct a colloquy in which it
informs the defendant of, and determines that the defendant
comprehends, the nature of the charge to which he is pleading
guilty, any mandatory minimum penalty, the maximum possible
penalty he faces, and the rights he is relinquishing by pleading
guilty. Fed. R. Crim. P. 11(b); United States v. DeFusco, 949
F.2d 114, 116 (4th Cir. 1991). The court also must ensure that
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the plea is voluntary, supported by an independent factual
basis, and not the result of force, threats, or promises not
contained in the plea agreement. Fed. R. Crim. P. 11(b)(2),
(3).
Because Hamilton did not seek to withdraw his plea in
the district court or timely object to any alleged Rule 11
error, we review the plea colloquy for plain error. United
States v. Massenburg, 564 F.3d 337, 342 (4th Cir. 2009). To
establish plain error, Hamilton must show that (1) the district
court erred, (2) the error was plain, and (3) the error affects
his substantial rights. United States v. Olano,
507 U.S. 725,
732 (1993). In the guilty plea context, an error affects a
defendant’s substantial rights if he demonstrates a reasonable
probability that he would not have pled guilty but for the
error.
Massenburg, 564 F.3d at 343. Even if these requirements
are met, we will exercise our discretion to correct such error
only if “the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.”
Olano, 507 U.S. at
732 (internal quotation marks and alteration omitted).
Our review of the plea hearing reveals that the
district court substantially complied with Rule 11 in conducting
the plea colloquy and that any minor omissions by the court did
not affect Hamilton’s substantial rights. The available record
does not support Hamilton’s assertion that he did not comprehend
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the charge to which he pled. Thus, we conclude the district
court did not plainly err in finding Hamilton’s plea knowing and
voluntary.
Counsel next questions whether the district court
erred in calculating the amount of loss attributed to Hamilton
to establish his Guidelines range. Typically, factual
determinations made during sentencing are reviewed for clear
error. United States v. Strieper, 666 F.3d 288, 292 (4th Cir.
2012). However, because Hamilton did not object to the loss
calculation in the district court, we review the issue for plain
error. Id.; see
Olano, 507 U.S. at 732 (standard).
When calculating a Guidelines range applicable to a
fraud offense, the government is required to establish the
amount of loss by a preponderance of the evidence. See United
States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003). “[T]he
court need only make a reasonable estimate of the loss.” United
States v. Cloud,
680 F.3d 396, 409 (4th Cir.) (internal
quotation marks omitted), cert. denied,
133 S. Ct. 218 (2012);
USSG § 2B1.1 cmt. n.3(C). Generally, “loss is the greater of
actual loss or intended loss.” USSG § 2B1.1 cmt. n.3(A).
A defendant seeking to challenge the presentence
report “has an affirmative duty to make a showing that the
information in the presentence report is unreliable, and
articulate the reasons why the facts contained therein are
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untrue or inaccurate.” United States v. Terry, 916 F.2d 157,
162 (4th Cir. 1990). In the absence of objections “showing the
information is inaccurate, the court is free to adopt the
findings of the [presentence report] without more specific
inquiry or explanation.”
Id. (internal quotation marks
omitted); see Fed. R. Crim. P. 32(i)(3)(A) (recognizing that, at
sentencing, district court “may accept any undisputed portion of
the presentence report as a finding of fact”).
Here, the court’s loss calculation was based on a
stipulation between the parties proffered during the sentencing
hearing. Because Hamilton concurred in the Government’s request
for an amendment to the Guidelines range adopting this
stipulation, any sentencing error based on the application of
this loss amount is not properly before us. See United
States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997) (“[A] court
cannot be asked by counsel to take a step in a case and later be
convicted of error, because it has complied with such request.”
(internal quotation marks omitted)). In any event, because
Hamilton did not object to the loss calculations provided in the
presentence report, the court was free to accept these
calculations in imposing Hamilton’s sentence. Given that these
original loss calculations established a much higher Guidelines
range than that derived from the parties’ agreement, any error
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in accepting the lower, agreed-upon calculation did not affect
Hamilton’s substantial rights. See Cloud, 680 F.3d at 411.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Hamilton, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Hamilton 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 Hamilton.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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