US v. April Garrett

Filing 920100326

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4953 UNITED STATES OF AMERICA, Plaintiff Appellee, v. APRIL NICOLE HUCKABEE GARRETT, Defendant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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 5

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