US v. Kimberley DeMata

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:14-cr-00201-TMC-1 Copies to all parties and the district court/agency. [999680379].. [15-4193]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4193

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KIMBERLEY J. DEMATA,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. Timothy M. Cain, District Judge.
(6:14-cr-00201-TMC-1)

Submitted:

September 29, 2015

Decided:

October 19, 2015

Before GREGORY, SHEDD, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Lora Blanchard, Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kimberley
37-month

J.

sentence

DeMata

appeals

entered

from

pursuant

conspiracy to defraud the IRS.

to

her

conviction

her

guilty

plea

and
to

On appeal, DeMata’s counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious issues for appeal,
but

questioning

whether

DeMata’s

sentence

was

unreasonable.

Neither the Government nor DeMata has filed a brief.

After an

examination of the entire record, we affirm.
Although DeMata asserts that her sentence is unreasonable,
she

offers

sentence

no

specific

“under

a

reasoning.

deferential

We

review

a

abuse-of-discretion

Gall v. United States, 552 U.S. 38, 41 (2007).
standard,

a

substantive
procedural
court

sentence

reviewed

reasonableness.
reasonableness,

properly

range,

is

gave

calculated

the

parties

Id.
we

for
at

both
51.

consider

defendant’s

an

opportunity

Under this

In

and

determining
the

advisory
to

standard.”

procedural

whether

the

defendant’s

district

Guidelines

argue

for

an

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
factors,

and

sufficiently

explained

the

selected

sentence.

Gall, 552 U.S. at 49-51.
If a sentence is free of “significant procedural error,” we
then review it for substantive reasonableness, “tak[ing] into
account the totality of the circumstances.”
2

Id. at 51.

“Any

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sentence

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that

is

within

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or

below

a

properly

Guidelines range is presumptively reasonable.”

calculated

United States v.

Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct.
421

(2014).

Such

a

presumption

can

only

be

rebutted

by

a

showing that the sentence is unreasonable when measured against
the § 3553(a) factors.

Id.

Here, the district court gave an individualized assessment
of DeMata’s conduct.
arguments

for

a

The district court entertained DeMata’s

probationary

sentence,

even

if

it

specifically state it was rejecting the arguments.

did

not

Moreover,

the court explicitly stated that it considered all the statutory
factors and, in fact, examined several factors individually in
depth,

demonstrating

“reasoned

support the sentence.
329

(4th

Cir.

2009).

decisionmaking”

sufficient

to

United States v. Carter, 564 F.3d 325,
Thus,

we

conclude

that

DeMata’s

within-Guidelines sentence was not unreasonable.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in this case for meritorious issues and have found none.
Accordingly, we affirm.

This court requires that counsel inform

DeMata in writing of her right to petition the Supreme Court of
the United States for further review.

If DeMata requests that a

petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave
to

withdraw

from

representation.
3

Counsel's

motion

must

state

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that a copy thereof was served on DeMata.

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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