USA v. Dina Smith

Filing

UNPUBLISHED OPINION FILED. [09-50343 Affirmed ] Judge: EHJ , Judge: EGJ , Judge: LHS Mandate pull date is 01/05/2011 for Appellant Dina Clarise Smith [09-50343]

USA v. Dina Smith Case: 09-50343

Document: 00511322225 Page: 1 Date Filed: 12/15/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50343 S u m m a r y Calendar December 15, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. D I N A CLARISE SMITH, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 7:08-CR-251-1

B e fo r e JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. P E R CURIAM:* D in a Clarise Smith pleaded guilty, pursuant to a plea agreement, to one c o u n t of bank fraud and one count of aggravated identity theft. These charges a r o s e out of a scheme in which Smith, an accountant, wrote fraudulent checks o n her client's bank account. Smith made the checks payable to herself and fo r g e d the signatures of those authorized to sign them. The district court

s e n te n c e d her to a 33-month prison term on the bank-fraud count and a 24m o n t h prison term on the aggravated-identity-theft count, to be served
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 09-50343 Document: 00511322225 Page: 2 Date Filed: 12/15/2010 No. 09-50343 c o n s e c u t iv e ly . The court also ordered her to pay $211,262.99 in restitution to t h r e e victims. S m it h first argues that the factual basis was inadequate to support her g u ilt y plea on the identity-theft charge because, she asserts, it did not support t h e conclusion that she knew the identities used to commit the offense belonged t o others as United States v. Flores-Figueroa, 129 S. Ct. 1886, 1894 (2009) r e q u ir e s . Smith did not raise the argument in the district court, and thus our r e v ie w is for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002). I n the factual basis, which Smith signed and which she attested was a c c u r a t e at the rearraignment hearing, she admitted that only three people had t h e authority to sign checks on behalf of her client and that each time she made a check payable to herself she forged the signatures of two them. Nothing in the r e c o r d suggests that Smith's scheme did not involve the identities of actual p e o p le ; to the contrary, the success of the scheme necessitated that she use the n a m e s of the actual people with authorization to sign the checks. Contrary to S m it h 's assertion, she was not required to explicitly admit that she knew that t h e names used to forge the checks belonged to the those who were authorized t o sign them; the facts that she admitted were more than sufficient to draw this in fe r e n c e . See United States v. Hildenbrand, 527 F.3d 466, 475 (5th Cir. 2008). Smith next contends that the Government did not meet its burden to show t h a t two of the victims suffered losses entitling them to restitution. We assume w it h o u t deciding that the appeal waiver in the plea agreement does not bar this a r g u m e n t . See United States v. Smith, 528 F.3d 423, 425 (5th Cir. 2008). Smith fa ile d to object to the findings in the presentence report (PSR) related to r e s t it u t io n or to the restitution order in the district court; thus, our review is for p la in error. See United States v. Howard, 220 F.3d 645, 647 (5th Cir. 2000). The P S R reflects that a probation officer contacted four potential victims and that t h r e e declared losses. Those reported losses were the basis of the PSR's

r e s t it u t io n recommendation, which the district court adopted. Smith presented 2

Case: 09-50343 Document: 00511322225 Page: 3 Date Filed: 12/15/2010 No. 09-50343 n o information to the district court suggesting that these victims did not suffer t h e losses they reported. Indeed, at the sentencing hearing, defense counsel e x p r e s s ly agreed that the recommended restitution as described in the PSR was c o r r e c t . Moreover in her brief to this court, Smith fails to explain how the in fo r m a t io n in the PSR is inaccurate. Because Smith failed to rebut the findings in the PSR, the district court did not plainly err in adopting them and using t h e m as the basis for ordering restitution. See United States v. Smith, 528 F.3d a t 425. F in a lly , Smith argues that the district court erred in assessing a two-level o ffe n s e -le v e l enhancement for using sophisticated means to implement her s c h e m e . However, in the plea agreement, Smith agreed that she would not c h a lle n g e her conviction or sentence on appeal except in limited circumstances n o t applicable here. Smith maintains that her appeal waiver should not be e n fo r c e d because at sentencing the district court told her the she had the right t o appeal unless this right had been waived as part of the plea agreement, that s h e had the right to counsel on appeal, and that a notice of appeal was due w it h in 10 days. Smith explains that this information conflicted with other in fo r m a t io n she received about the waiver and argues that the district court did n o t ensure that she fully understood her right to appeal and the consequences o f waiving the right. W e enforce appeal waivers as long as they are made voluntarily and in t e llig e n t ly . United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006). Smith s ig n e d the plea agreement, which included the waiver provision, attesting that s h e had read it, had discussed it with her lawyer, and would comply with its t e r m s . At the rearraignment hearing, Smith again affirmed that she accepted a n d approved of the agreement, and she waived a reading of it. She did not ask a n y questions regarding the scope of the appellate waiver. Thus, her waiver is v a lid . See United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).

Moreover, there was no error in the district court's statement at sentencing 3

Case: 09-50343 Document: 00511322225 Page: 4 Date Filed: 12/15/2010 No. 09-50343 r e g a r d in g Smith's appellate rights. The court explained to Smith that she had t h e right to appeal and to appointment of counsel on appeal "assuming your r ig h t s to appeal were not given up or waived as part of your plea agreement." Because Smith had waived her right to appeal, there can be no confusion that t h e rights the court explained did not apply to her. The court's comments did not r e n d e r the appeal waiver unknowing; indeed, they were entirely consistent with t h e waiver. Smith also argues that the appeal waiver does not bar her sentencing a p p e a l because the waiver does not explicitly forbid challenges to the guidelines c a lc u la t io n s . We enforce broad appellate waivers and have declined to examine t h e correctness of applying a particular guideline where the defendant has a g r e e d to a general waiver of the right to appeal the sentence. United States v. B o n d , 414 F.3d 542, 546 (5th Cir. 2005). Moreover, Smith explicitly gave up her r ig h t to challenge the guidelines calculations. In addition to the general appeal w a iv e r where Smith "waive[d] the right to appeal any aspect of the conviction a n d sentence," the agreement explained that Smith's sentence would be d e t e r m in e d using the Sentencing Guidelines, that guidelines calculations "can b e extremely complicated" and that "[e]ven if the sentence is worse than [Smith] e x p e c t s ," she would "nonetheless be barred from" challenging the sentence on a p p e a l. Accordingly, we will enforce the waiver and decline to address Smith's s e n te n c in g argument. AFFIRMED.

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