United States v. Garrett , 371 F. App'x 429 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4953
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
APRIL NICOLE HUCKABEE GARRETT,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:09-cr-00428-HFF-1)
Submitted: March 8, 2010 Decided: March 26, 2010
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. David Calhoun Stephens,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
April Nicole Huckabee Garrett pled guilty to two
counts of falsely representing a social security number, in
violation of 42 U.S.C. § 408(a)(7)(B) (2006), and one count of
passing a counterfeit money order, in violation of 18 U.S.C.
§ 500 (2006), and was sentenced to twelve months in prison. On
appeal, Garrett’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he asserts that there
are no meritorious issues for appeal, but questions whether the
district court committed procedural error in sentencing Garrett.
Additionally, a review of the record revealed another
potentially meritorious issue: whether the district court erred
in failing to ascertain at sentencing whether Garrett had
reviewed the presentence report (“PSR”) with her attorney.
Garrett was advised of her right to file a pro se brief, but has
not done so. The Government also has not filed a brief.
Finding no error, we affirm.
Under Fed. R. Crim. P. 32(i)(1)(A), the district court
“must verify that the defendant and the defendant’s attorney
have read and discussed the presentence report and any addendum
to the report.” However, the court “need not expressly ask
whether the defendant has read the presentence report and
discussed it with [her] counsel, provided ‘there is . . .
evidence in the record from which one could reasonably infer’
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that the defendant and [her] counsel have read and discussed the
report.” United States v. Lockhart, 58 F.3d 86, 88 (4th Cir.
1995) (quoting United States v. Miller, 849 F.2d 896, 897-98
(4th Cir. 1988)) (alteration in original). Where, as here, a
defendant fails to raise this issue before the district court,
this court reviews it only for plain error. Id. Thus, we “must
be convinced that (1) an error was committed; (2) the error was
plain; and (3) the error affected [Garrett’s] substantial
rights.” Id.Here, the district court specifically asked Garrett if
she had the opportunity to go over the PSR and whether she had
any questions, but failed to ask whether counsel had reviewed a
copy and whether Garrett discussed the report with counsel.
Moreover, nothing in the transcript confirms that Garrett
discussed the PSR with counsel prior to the sentencing hearing;
the transcript shows only that the court asked counsel if he had
any objections to the PSR, and counsel stated that he did not.
Accordingly, we find that the district court committed error,
and that the error was plain. Nonetheless, Garrett is not
entitled to relief, as the record does not demonstrate that the
error affected the outcome of the sentencing hearing. The PSR
properly calculated the applicable Guidelines range, and Garrett
was sentenced within that range. Therefore, “remand for
resentencing ‘would be a fruitless exercise.’” Lockhart,
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58 F.3d at 89 (quoting United States v. Lewis, 10 F.3d 1086,
1092 (4th Cir. 1993)).
In the Anders brief, Garrett’s counsel challenges the
procedural reasonableness of Garrett’s sentence. Procedural
errors include “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--including an explanation
for any deviation from the Guidelines range.” See Gall v.
United States, 552 U.S. 38, 51 (2007). Here, the Guidelines
range was properly calculated, and the court treated the
Guidelines as discretionary and articulated a rationale for the
sentence having considered the factors in § 3553(a). The court
read a portion of the victim impact statement highlighting the
significance of this crime on the individual victim, and noted
the need for a sentence to reflect the seriousness of the crime.
Thus, the district court did not commit procedural error in
sentencing Garrett. Moreover, the sentence was within the
properly calculated Guidelines range; therefore we presume on
appeal that the sentence is substantively reasonable. See
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). We
conclude that Garrett has failed to rebut that presumption.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Garrett’s conviction and sentence.
This court requires that counsel inform Garrett, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Garrett 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 Garrett. 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
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