US v. Tracie Clay

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999765297-2] Originating case number: 1:14-cr-00261-WO-1. Copies to all parties and the district court/agency. [999792288]. [15-4414]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4414

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRACIE YVETTE CLAY,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00261-WO-1)

Submitted:

February 19, 2016

Decided:

April 11, 2016

Before KING, DUNCAN, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant.
Robert Michael Hamilton, Assistant
United
States
Attorney,
Greensboro,
North
Carolina,
for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tracie Yvette Clay pled guilty to two counts of health care
fraud, in violation of 18 U.S.C. §§ 2, 1347(a)(2) (2012), and
one count of money laundering, in violation of 18 U.S.C. §§ 2,
1957(a),

(b)

Guidelines

(2012).

range

The

under

district

court

calculated

Clay’s

the

U.S.

Sentencing

Guidelines

Manual

(2014) at 70 to 87 months’ imprisonment and sentenced Clay to 70
months’ imprisonment.

The district court also ordered that Clay

pay $990,099.58 in restitution.
On appeal, counsel has filed a brief pursuant to Anders v.
California,

386

U.S.

738

(1967),

stating

that

there

are

no

meritorious grounds for appeal, but raising as issues for review
whether the district court reversibly erred in accepting Clay’s
guilty plea and abused its discretion in imposing the 70-month
prison sentence and the restitution sum.

Clay was informed of

her right to file a pro se supplemental brief, but she has not
done

so.

The

Government

elected

not

to

file

a

brief.

We affirm.
Because Clay did not move in the district court to withdraw
her guilty plea, the acceptance of her guilty plea is reviewed
for plain error only.

United States v. Williams, 811 F.3d 621,

622 (4th Cir. 2016); United States v. Martinez, 277 F.3d 517,
524-26 (4th Cir. 2002).
must show:

To demonstrate plain error, a defendant

(1) there was error; (2) the error was plain; and
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(3) the error affected her substantial rights.
Olano, 507 U.S. 725, 732 (1993).
defendant

meets

affected

her

her

burden

substantial

United States v.

In the guilty plea context, a

to

establish

rights

by

that

a

showing

plain
a

error

reasonable

probability that she would not have pled guilty but for the
district

court’s

Fed.

R.

Crim.

P.

11

omissions.

United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).
Our review of the transcript of the guilty plea hearing
leads

us

to

conclude

that

the

district

court

substantially

complied with the mandates of Rule 11 in accepting Clay’s guilty
plea

and

that

substantial
district

court’s

rights.

court

independent
knowingly

the

ensured

basis
and

consequences.

The

in

omissions
transcript

that
fact

voluntarily

the
and
with

did
also

plea
that
an

not

reveals

was
Clay

affect

Clay’s

that

supported
entered

the

by

an

the

understanding

plea

of

the

Accordingly, we discern no plain error in the

district court’s acceptance of Clay’s guilty plea.

See United

States v. DeFusco, 949 F.2d 114, 116, 120 (4th Cir. 1991).
Turning to Clay’s sentence, we review it for reasonableness
“under

a

deferential

abuse-of-discretion

United States, 552 U.S. 38, 41, 51 (2007).

standard.”

Gall

v.

This review entails

appellate consideration of both the procedural and substantive
reasonableness of the sentence.

Id. at 51.

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After

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determining

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whether

the

district

court

properly

calculated the defendant’s advisory Guidelines range and gave
the parties an opportunity to argue for an appropriate sentence,
we consider whether the district court considered the 18 U.S.C.
§ 3553(a)

(2012)

factors

and

any

arguments

presented

by

the

parties, selected a sentence based on clearly erroneous facts,
and sufficiently explained the selected sentence.

Id. at 49-51.

If the sentence is free of “significant procedural error,” we
review the substantive reasonableness of the sentence, “tak[ing]
into account the totality of the circumstances.”

Id. at 51.

Any sentence within or below a properly calculated Guidelines
range

is

presumptively

substantively

reasonable.

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.

In this case, the district court did not reversibly err in
calculating

the

Guidelines

range

and

from counsel and allocution from Clay.

properly

heard

argument

The court explained that

the 70-month prison sentence was warranted in light of Clay’s
history and characteristics, the nature of her offense conduct,
and the need for the sentence to provide deterrence to criminal
conduct and to protect the public from further crimes by Clay.
18 U.S.C. § 3553(a)(1), (2)(B)-(C).
4

Clay does not offer any

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grounds

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to

rebut

within-Guidelines
substantively
district

the

presumption

sentence

reasonable.

court

did

not

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of

70

on
months’

Accordingly,

abuse

its

appeal

we

that

imprisonment
conclude

discretion

her
is
the

imposing

in

that

the

70-month term.
Turning to the restitution order, Clay did not object to
its imposition in the district court, and we therefore review it
for plain error only.
183-84

(4th

Cir.

United States v. Hargrove, 625 F.3d 170,

2010).

We

have

reviewed

the

record

and

conclude that the district court did not plainly err in ordering
the restitution sum in this case.

See 18 U.S.C. § 3663A(a)(1),

(c)(1)(B) (2012); United States v. Randall, 171 F.3d 195, 210-11
(4th Cir. 1999).
Finally, in accordance with Anders, we have reviewed the
remainder

of

the

record

in

meritorious issues for appeal.
court’s judgment.

this

case

and

have

found

no

We therefore affirm the district

We deny Clay’s motion to appoint counsel.

This court requires that counsel inform Clay, in writing, of the
right to petition the Supreme Court of the United States for
further review.

If Clay requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Clay.
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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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