US v. Tiffanie Brack
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00363-LCB-1 Copies to all parties and the district court/agency. .. [17-4017]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
TIFFANIE ANITA BRACK,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Loretta Copeland Biggs, District Judge. (1:15-cr-00363-LCB-1)
Submitted: September 28, 2017
Decided: October 6, 2017
Before TRAXLER, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stacey D. Rubain, QUANDER & RUBAIN, Winston-Salem, North Carolina, for
Appellant. Frank Joseph Chut, Jr., Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Tiffanie Anita Brack appeals her convictions and 48-month sentence following her
guilty plea to one count of mail fraud, in violation of 18 U.S.C. §§ 1341, 2 (2012), and one
count of bank fraud, in violation of 18 U.S.C. § 1344(2) (2012). Brack’s attorney has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), concluding there are no
meritorious grounds for appeal, but questioning (1) whether the district court complied
with Fed. R. Crim. P. 11 in accepting Brack’s guilty plea; (2) whether the variant sentence
is procedurally and substantively reasonable; and (3) whether the district court abused its
discretion in running the sentence consecutive to a term of imprisonment imposed for the
revocation of supervised release. Brack has filed a pro se brief in which she also challenges
the reasonableness of her sentence, claims that she was entitled to notice of the district
court’s intent to vary from the Guidelines range, and asserts that counsel rendered
ineffective assistance. Upon review, we affirm.
Because Brack did not move in the district court to withdraw her guilty plea, we
review her plea hearing for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). “[T]o satisfy the plain error standard [Brack] must show: (1) an error was made;
(2) the error is plain; and (3) the error affects substantial rights.” United States v.
Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).
Even if Brack satisfies these
requirements, “[t]he decision to correct the error lies within our discretion, and we exercise
that discretion only if the error seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. at 343 (internal quotation marks omitted). Our review of the
record reveals that the district court substantially complied with Rule 11 of the Federal
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Rules of Criminal Procedure in accepting Brack’s guilty plea, which Brack entered
knowingly and voluntarily.
We review a sentence for procedural and substantive reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). We first examine
the sentence for “significant procedural error,” including “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.” Id. at 51. If the
sentence is free of procedural error, we then considers the substantive reasonableness of
the sentence, “tak[ing] into account the totality of the circumstances.” Id.
When the district court imposes a variant sentence, we consider “whether the
sentencing court acted reasonably both with respect to its decision to impose such a
sentence and with respect to the extent of the divergence from the sentencing range.”
United States v. Washington, 743 F.3d 938, 944 (4th Cir. 2014) (internal quotation marks
omitted). “While a district court’s explanation for the sentence must support the degree of
the variance, . . . it need not find extraordinary circumstances to justify a deviation from
the Guidelines.” United States v. Spencer, 848 F.3d 324, 327 (4th Cir. 2017) (citation and
internal quotation marks omitted). A substantial departure should “be supported by a more
significant justification than a minor one.” Gall, 552 U.S. at 50. However, we “must defer
to the trial court and can reverse a sentence only if it is unreasonable, even if the sentence
would not have been the choice of the appellate court.” United States v. Evans, 526 F.3d
155, 160 (4th Cir. 2008).
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Upon review, we conclude that Brack’s sentence is both procedurally and
substantively reasonable. The district court properly calculated Brack’s offense level and
criminal history. Additionally, in rendering an individualized sentence and imposing an
upward variance, the district court considered Brack’s lengthy criminal history, including
two prior terms of imprisonment that had not deterred her criminal conduct, and her
continued criminal behavior while on supervised release. Although the district court
primarily focused on the need to deter Brack’s criminal behavior, the court also noted that
it had considered the nature and circumstances of the offense; the history and
characteristics of the defendant, including her age and mental condition; the need to reflect
the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; and the need to protect the public. We conclude that the district
court adequately considered the § 3553(a) factors, conducted an individualized assessment
based on the facts presented, and gave adequate reasons to support the variant sentence.
We further conclude that the district court did not abuse its discretion in running Brack’s
sentence consecutive to the sentence imposed for the revocation of her supervised release.
See U.S. Sentencing Guidelines Manual § 5G1.3 cmt. n.4(C) (2015) (addressing situations
in which “the defendant was on federal . . . supervised release at the time of the . . . offense
and has had such . . . supervised release revoked” and recommending “that the sentence for
the . . . offense be imposed consecutively to the sentence imposed for the revocation”).
Turning to the additional issues raised by Brack in her informal brief, Brack argues
that she was never given notice that the district court intended to impose an upward
variance. Because Brack did not raise the issue in the district court, we review for plain
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error. United States v. Spencer, 848 F.3d 324, 328 (4th Cir. 2017). Brack cannot
demonstrate any error, however, as the district court was not required to provide notice of
its intent to vary from the Guidelines range. See Irizarry v. United States, 553 U.S. 708,
714-16 (2008); United States v. Morace, 594 F.3d 340, 344 (4th Cir. 2010). Finally, to the
extent that Brack suggests that counsel rendered ineffective assistance, we find that no
conclusive evidence of ineffective assistance appears on the face of the record and any such
claims should be raised, if at all, in a 28 U.S.C. § 2255 (2012) motion. See United States v.
Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016).
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Brack, in writing, of the right to petition the
Supreme Court of the United States for further review. If Brack 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 was served on Brack. 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.
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