US v. Perry Haywood, Jr.
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:12-cr-00212-RWT-1. Copies to all parties and the district court/agency. . Mailed to: Perry Haywood, Jr. #62256-037; F.C.I. Berlin P.O. Box 9000 Berlin, NH 03570. [16-4383]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
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.
January 30, 2017
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
consecutive 24-month term on Count 4.
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
questions whether the district court violated the Ex Post Facto
brief in which he raises essentially the same issues. *
Government has declined to file a response.
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).
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outside, or significantly outside the Guidelines range[,] under
Id. at 51.
reasonableness of the sentence.
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
erroneous facts, or failed to explain sufficiently the selected
Id. at 49-51.
The lone procedural error claimed by Haywood pertains to
We review such a determination for clear error.
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.
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.”
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
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
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
resulting four-level enhancement.
Counsel’s second issue in the Anders brief asks whether the
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determining Haywood’s sentence.
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
USSG § 2B1.1(b)(1)(C).
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
record in this case and found no meritorious ground for appeal.
We therefore affirm the district court’s judgment.
requires that counsel inform Haywood, in writing, of the right
to petition the Supreme Court of the United States for further
counsel believes that such a petition would be frivolous, then
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
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