United States v. Kiki Sherald , 469 F. App'x 191 ( 2012 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-4639
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    KIKI LEWIS SHERALD,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
    District Judge. (3:10-cr-00117-MOC-1)
    Submitted:   March 5, 2012                 Decided:   March 15, 2012
    Before KING, SHEDD, and AGEE, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Reggie E. McKnight, MCKNIGHT LAW FIRM, P.L.L.C., Charlotte,
    North Carolina, for Appellant.     Amy Elizabeth Ray, Assistant
    United States Attorney, Asheville, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Kiki Lewis Sherald pleaded guilty, pursuant to a plea
    agreement, to conspiracy to commit mortgage fraud and conspiracy
    to commit money laundering, and the district court sentenced him
    to thirty-seven months’ imprisonment.                  Counsel filed a brief in
    accordance      with    Anders      v.   California,       
    386 U.S. 738
       (1967),
    certifying that there are no meritorious issues for appeal but
    asking this court to consider whether the Government engaged in
    misconduct by requesting a higher sentence in light of Sherald’s
    allocution.        Although informed of his right to file a pro se
    supplemental brief, Sherald has not done so.                      We affirm.
    “[W]e       review       for     plain     error           a     prosecutorial
    misconduct claim that was not raised or presented to the trial
    court.”      United       States    v.     Alerre,    
    430 F.3d 681
    ,   689   (4th
    Cir. 2005).        To succeed on a claim of prosecutorial misconduct,
    a     defendant    must    show     that     the     prosecutor’s           remarks     were
    improper     and    that     “the    improper      remarks        so       prejudiced    the
    defendant’s substantial rights that the defendant was denied a
    fair trial.”        United States v. Lighty, 
    616 F.3d 321
    , 359 (4th
    Cir. 2010), cert. denied, 
    132 S. Ct. 451
     (2011).
    The Government’s argument for a sentence at the top of
    the    Guidelines      range   established         after     a    two-level         downward
    variance was not improper.                 In selecting a sentence, district
    courts    are     required     to    consider,       among       other      factors,     the
    2
    history and characteristics of the defendant as well as the need
    to reflect the seriousness of the offense and promote respect
    for the law.        
    18 U.S.C. § 3553
    (a) (2006).                    Accordingly, because
    the district court could consider Sherald’s attempt to minimize
    the seriousness of his conduct, the Government was permitted to
    argue    for    a   sentence       based    upon      Sherald’s       apparent       lack   of
    remorse.       See, e.g., United States v. Cruzado-Laureano, 
    527 F.3d 231
    , 237 (1st Cir. 2008).
    In accordance with Anders, we have reviewed the record
    and have found no meritorious issues for appeal.                              We therefore
    affirm the district court’s judgment.                        This court requires that
    counsel inform Sherald, in writing, of the right to petition the
    Supreme     Court      of   the    United   States          for    further    review.       If
    Sherald 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
    Sherald.       We dispense with oral argument because the facts and
    legal    contentions        are     adequately        presented       in     the    materials
    before    the    court      and    argument         would    not    aid    the     decisional
    process.
    AFFIRMED
    3
    

Document Info

Docket Number: 11-4639

Citation Numbers: 469 F. App'x 191

Judges: Agee, King, Per Curiam, Shedd

Filed Date: 3/15/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023