US v. Cynthia Poakwa

Filing 920100304

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4472

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CYNTHIA POAKWA, a/k/a Cynthia Barbour, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:07cr-00141-RWT-1)

Submitted:

January 14, 2010

Decided:

March 4, 2010

Before GREGORY, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Martin G. Bahl, Assistant Federal Public Defender, Baltimore, Maryland, for Appellant. Bryan E. Foreman, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Cynthia Poakwa pleaded guilty to four counts of aiding and abetting the filing of fraudulent tax returns, in violation of 26 U.S.C. § 7206(2) (2006). The district court sentenced

Poakwa to thirty-three months of imprisonment and Poakwa now appeals. Her attorney has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), raising two issues but stating that there are no meritorious issues for appeal. In district knowing the Anders erred in brief, counsel We affirm. whether plea in the as the

questions

court and

accepting Because

Poakwa's did

guilty not move

voluntary.

Poakwa

district court to withdraw her guilty plea, any error in the Rule 11 hearing is reviewed 277 F.3d for plain 525 error. (4th See Cir. United 2002).

States v.

Martinez,

517,

Furthermore, there is a strong presumption that a defendant's guilty plea is binding and voluntary if she has received an adequate Fed. R. Crim. P. 11 hearing. United States v. Puckett,

61 F.3d 1092, 1099 (4th Cir. 1995); see Blackledge v. Allison, 431 U.S. 63, 74 (1977) (finding that statements made during a plea hearing of "carry a strong presumption that of the verity"). district Our court We in

review

the

record

discloses

substantially complied with the requirements of Rule 11. conclude, therefore, that the district court did not err

accepting Poakwa's guilty plea as knowing and voluntary. 2

Counsel next questions whether the sentence imposed by the district court is reasonable. reasonableness, applying an abuse We review a sentence for of discretion standard.

Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so doing, we first examine the

sentence for "significant procedural error," including "failing to calculate (or improperly calculating) the [g]uidelines range, treating the [g]uidelines as mandatory, failing to consider the [18 U.S.C.] on § 3553(a) [(2006)] factors, or selecting failing to a sentence

based

clearly

erroneous

facts,

adequately

explain the chosen sentence . . . ."

Gall, 128 S. Ct. at 597.

This court then "`consider[s] the substantive reasonableness of the sentence imposed.'" United States v. Evans, 526 F.3d 155,

161 (4th Cir.) (quoting Gall, 128 S. Ct. at 597), cert. denied, 129 S. Ct. 476 (2008). "Substantive reasonableness review

entails taking into account the `totality of the circumstances, including range.'" the extent of any variance from the [g]uidelines

United States v. Pauley, 511 F.3d 468, 473 (4th Cir. If the sentence is a presumption of

2007) (quoting Gall, 128 S. Ct. at 597). within the guidelines range, we apply

reasonableness.

United States v. Allen, 491 F.3d 178, 193 (4th

Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56

3

(2007)

(upholding

presumption

of

reasonableness

for

within-guidelines sentence). We have thoroughly reviewed the record and find that the sentence is both procedurally and substantively reasonable. The district court properly calculated the advisory guidelines range, considered the 18 U.S.C. § 3553(a) factors, and provided a comprehensive explanation of its chosen sentence. See United In of

States v. Carter, 564 F.3d 325, 328-30 (4th Cir. 2009). addition, substantive sentence. Poakwa has failed we to rebut to the her presumption

reasonableness

accord

within-guidelines

We have examined the entire record in accordance with the requirements of Anders and have found no meritorious issues for appeal. court. writing, This of We therefore affirm the judgment of the district court requires to that counsel the inform Poakwa, of in the

the

right

petition

Supreme

Court

United States for further review.

If Poakwa 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 We dispense and legal

state that a copy thereof was served on Poakwa. with oral argument because the facts

4

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

5