US v. Perry Haywood, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:12-cr-00212-RWT-1. Copies to all parties and the district court/agency. [1000044116]. Mailed to: Perry Haywood, Jr. #62256-037; F.C.I. Berlin P.O. Box 9000 Berlin, NH 03570. [16-4383]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4383

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PERRY J. HAYWOOD, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:12-cr-00212-RWT-1)

Submitted:

January 30, 2017

Decided:

March 17, 2017

Before GREGORY, Chief Judge, and MOTZ and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Nancy S. Forster, FORSTER, JOHNSON & LECOMPTE, Baltimore,
Maryland, for Appellant.
Ray Daniel McKenzie, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Perry J. Haywood, Jr., pled guilty, pursuant to a written
plea agreement, to possession of access device-making equipment
with intent to defraud, in violation of 18 U.S.C. § 1029(a)(4)
(2012) (Count 2), and aggravated identity theft, in violation of
18

U.S.C.

sentenced

§ 1028A
Haywood

imprisonment,

(2012)
to

consisting

(Count

an

4).

The

aggregate

of

30

term

months

consecutive 24-month term on Count 4.

on

district
of

54

Count

court
months’

2

and

a

In this appeal, which is

taken pursuant to Anders v. California, 386 U.S. 738 (1967),
counsel avers that there are no nonfrivolous issues but asks us
to review the district court’s loss determination and resulting
four-level

increase

to

Haywood’s

base

offense

level,

and

questions whether the district court violated the Ex Post Facto
Clause

by

Guidelines

utilizing

the

2015

Manual.

Haywood

edition
has

filed

of

the

U.S.

a

pro

se

Sentencing

supplemental

brief in which he raises essentially the same issues. *
Government has declined to file a response.

The

For the reasons

that follow, we affirm the judgment.

*

To the extent Haywood’s pro se supplemental brief also
challenges the computation of his sentence by the Bureau of
Prisons, this claim may be pursued in a petition under 28 U.S.C.
§ 2241 (2012), which is properly commenced in the federal
district court for the district in which Haywood is confined.
See United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989).

2

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This

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court

reviews

a

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sentence,

“whether

inside,

just

outside, or significantly outside the Guidelines range[,] under
a

deferential

States,

abuse-of-discretion

552

U.S.

consideration

38,

of

41

both

(2007).
the

court

reasonableness,

properly

range,

gave

calculated

the

parties

Gall

This

and

Id. at 51.

we

consider

defendant’s

an

opportunity

United

requires

substantive

In determining

whether

the

v.

review

procedural

reasonableness of the sentence.
procedural

standard.”

the

advisory
to

district

Guidelines

argue

for

an

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

factors,

selected

a

sentence

based

on

clearly

erroneous facts, or failed to explain sufficiently the selected
sentence.

Id. at 49-51.

The lone procedural error claimed by Haywood pertains to
the

district

amount.

court’s

determination

of

the

applicable

We review such a determination for clear error.

loss
United

States v. Jones, 716 F.3d 851, 859-60 (4th Cir. 2013).
When calculating the Guidelines range applicable to a fraud
offense, the Government is required to establish the amount of
loss by a preponderance of the evidence.

See United States v.

Miller, 316 F.3d 495, 503 (4th Cir. 2003).

Special rules govern

determinations of loss in cases like this, which involve stolen
or counterfeit credit cards and access devices.
cmt. n.3(F)(i).

USSG § 2B1.1

In such cases, “loss includes any unauthorized
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charges made with the counterfeit . . . or unauthorized access
device and shall be not less than $500 per access device.”
The

term

part,

“access

to

device”

is

“any

card,

include

defined

by

plate,

statute,

code,

in

Id.

relevant

account

number,

electronic serial number, . . . or other means of account access
that can be used, alone or in conjunction with another access
device, to obtain money.”

18 U.S.C. § 1029(e)(1) (2012).

Haywood, in his pro se supplemental brief, relies on the
stipulated statement of facts proffered in conjunction with his
plea

agreement

to

suggest

that

there

were

only

28

account

numbers involved in this offense, and thus that the intended
loss amount was not more than $14,000.

However, as counsel

acknowledges in the Anders brief, the factual stipulation also
recounted
“access

48

plastic

device,”

as

cards,
well

as

each

of

several

which

qualifies

skimming

as

devices.

an

Even

considering only the 48 cards -- as the district court did -based on the $500-per-device minimum loss recommendation in USSG
§ 2B1.1 cmt. n.3(F)(i), this amounted to $24,000 in loss, which
well supports application of the 4-level enhancement under USSG
§ 2B1.1(b)(1)(C).
district

We

court’s

loss

thus

discern

calculation

no

clear

and

error

application

in

the

of

the

resulting four-level enhancement.
Counsel’s second issue in the Anders brief asks whether the
district

court

ran

afoul

of

the
4

Ex

Post

Facto

Clause

by

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utilizing

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the

2015

edition

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of

the

determining Haywood’s sentence.

Sentencing

Guidelines

in

The record reveals that defense

counsel sought application of this edition of the Guidelines
because it was favorable to Haywood as it increased the minimum
dollar

amount

necessary

USSG § 2B1.1(b)(1)(C).

for

the

four-level

enhancement

under

The court acceded to counsel’s request.

Counsel does not identify, nor do we discern, any basis for the
ex post facto claim pressed here.

We thus reject this issue as

meritless.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in this case and found no meritorious ground for appeal.
We therefore affirm the district court’s judgment.

This court

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

If

Haywood

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 Haywood.

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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