US v. April Garrett

Filing 920100326

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4953

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. APRIL NICOLE HUCKABEE GARRETT, Defendant ­ Appellant.

Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:09-cr-00428-HFF-1)

Submitted:

March 8, 2010

Decided:

March 26, 2010

Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David W. Plowden, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. David Calhoun Stephens, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: April counts of Nicole Huckabee a Garrett social pled guilty to two in

falsely

representing

security

number,

violation of 42 U.S.C. § 408(a)(7)(B) (2006), and one count of passing a counterfeit money order, in violation of 18 U.S.C. § 500 (2006), and was sentenced to twelve months in prison. On

appeal, Garrett's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he asserts that there are no meritorious issues for appeal, but questions whether the district court committed procedural error in sentencing Garrett. Additionally, a review of the record revealed another

potentially meritorious issue: whether the district court erred in failing the to ascertain presentence at sentencing ("PSR") whether with Garrett her had

reviewed

report

attorney.

Garrett was advised of her right to file a pro se brief, but has not done so. The Government also has not filed a brief.

Finding no error, we affirm. Under Fed. R. Crim. P. 32(i)(1)(A), the district court "must verify that the defendant and the defendant's attorney have read and discussed the presentence report and any addendum to the report." whether discussed the it However, the court "need not expressly ask has read the presentence `there report is . and . .

defendant with

[her]

counsel,

provided

evidence in the record from which one could reasonably infer' 2

that the defendant and [her] counsel have read and discussed the report." United States v. Lockhart, 58 F.3d 86, 88 (4th Cir.

1995) (quoting United States v. Miller, 849 F.2d 896, 897-98 (4th Cir. 1988)) (alteration in original). Where, as here, a

defendant fails to raise this issue before the district court, this court reviews it only for plain error. Id. Thus, we "must

be convinced that (1) an error was committed; (2) the error was plain; rights." and Id. Here, the district court specifically asked Garrett if she had the opportunity to go over the PSR and whether she had any questions, but failed to ask whether counsel had reviewed a copy and whether nothing Garrett in the discussed the report with that counsel. Garrett (3) the error affected [Garrett's] substantial

Moreover,

transcript

confirms

discussed the PSR with counsel prior to the sentencing hearing; the transcript shows only that the court asked counsel if he had any objections to the PSR, and counsel stated that he did not. Accordingly, we find that the district court committed error, and that the error was plain. Nonetheless, Garrett is not

entitled to relief, as the record does not demonstrate that the error affected the outcome of the sentencing hearing. The PSR

properly calculated the applicable Guidelines range, and Garrett was sentenced within `would be that a range. fruitless 3 Therefore, exercise.'" "remand for

resentencing

Lockhart,

58 F.3d at 89 (quoting United States v. Lewis, 10 F.3d 1086, 1092 (4th Cir. 1993)). In the Anders brief, Garrett's counsel challenges the procedural reasonableness of Garrett's sentence. Procedural

errors include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence--including an explanation for any deviation from the Guidelines range." See Gall v.

United States, 552 U.S. 38, 51 (2007). range was properly calculated, and the

Here, the Guidelines court treated the

Guidelines as discretionary and articulated a rationale for the sentence having considered the factors in § 3553(a). The court

read a portion of the victim impact statement highlighting the significance of this crime on the individual victim, and noted the need for a sentence to reflect the seriousness of the crime. Thus, the district Garrett. court did not commit procedural was error in the

sentencing

Moreover,

the

sentence

within

properly calculated Guidelines range; therefore we presume on appeal that the sentence is substantively reasonable. See We

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). conclude that Garrett has failed to rebut that presumption.

4

In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm Garrett's conviction and sentence.

This court requires that counsel inform Garrett, in writing, of the right to petition the Supreme Court of the United States for further review. If Garrett 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 We dispense with oral argument because

was served on Garrett.

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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