United States v. Cheri Abraham , 436 F. App'x 202 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4707
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHERI BURNETTE ABRAHAM,
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-00436-HFF-1)
Submitted: June 23, 2011 Decided: June 30, 2011
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. William N. Nettles,
United States Attorney, David C. Stephens, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cheri Burnette Abraham pled guilty, without a plea
agreement, to bank fraud, in violation of 18 U.S.C. § 1344(2006). The district court sentenced Abraham to thirty months’
imprisonment and ordered her to pay $600,000 in restitution to
the victims in monthly installments of $300. Counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that, in his opinion, there are no meritorious issues
for appeal, but questioning whether Abraham’s sentence is
reasonable.* Upon review of the record, we directed supplemental
briefing from the parties on whether the district court
committed plain error by failing to make specific findings
addressing the statutory factors set forth in 18 U.S.C.
§ 3664(f)(2)(A)-(C) (2006) in entering the restitution order.
We affirm Abraham’s conviction and sentence, but vacate the
judgment and remand to the district court to correct the written
judgment to reflect the restitution payment option that is
consistent with its oral pronouncement at sentencing.
We review Abraham’s sentence using an abuse of
discretion standard of review. Gall v. United States, 552 U.S.
38, 51 (2008). The first step in this review requires us to
*
Abraham was informed of her right to file a pro se
supplemental brief, but has not done so. The Government
declined to file a responsive brief.
2
ensure that the district court committed no significant
procedural error. United States v. Evans, 526 F.3d 155, 161
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range or
failing to consider the [18 U.S.C.] § 3553(a) factors.” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal
quotation marks omitted). The district court must make an
individualized assessment based on the facts presented by
applying the relevant § 3553(a) factors to the circumstances of
the case. Gall, 552 U.S. at 51. The court then considers the
substantive reasonableness of the sentence, taking into account
the totality of the circumstances. Id.
Our review of the record leads us to conclude that the
district court did not procedurally err in sentencing Abraham.
The court properly calculated the Guidelines range, considered
the relevant § 3553(a) factors, made an individualized
assessment based on the facts presented, and adequately
explained its reasons for the chosen sentence.
Nor was the sentence imposed substantively
unreasonable. A sentence within the properly calculated
Guidelines range is presumptively reasonable. United States v.
Allen, 491 F.3d 178, 193 (4th Cir. 2007). The thirty-month
sentence was in the middle of a properly calculated Guidelines
3
range, and Abraham has failed to rebut the presumption of
reasonableness accorded that sentence.
At sentencing, the district court announced a sentence
that included restitution payments of $300 per month, commencing
sixty days after Abraham’s release from incarceration. When
counsel for Abraham suggested that her income at that time might
not support a $300 monthly payment, the court replied that it
would amend the sentence to “put the standard language in there
. . . to say that probation is empowered to adjust it up or down
for the restitution based upon her ability to pay. So if she
can’t, then they’ll adjust it.” The written judgment, however,
reflects the $300 per month payment schedule initially announced
by the court, and block D is checked on page five of the
judgment form. Abraham asserts that the court plainly erred in
failing to make findings regarding her ability to pay and in
improperly delegating to the probation officer its authority to
establish a payment schedule. The Government argues that the
court’s failure to make findings as to Abraham’s ability to pay
was mooted by the court’s amendment that postponed determination
of a payment schedule until her release from prison, when her
then-existing financial circumstances may be considered. The
Government also suggests that any improper delegation of
authority may be cured by simply correcting the written judgment
4
to check block E on page five, which indicates that the court
will determine a payment schedule after Abraham’s release.
Our review of the record leads us to conclude that the
district court clearly intended to amend its initial statement
regarding the restitution payment schedule to delay
determination of the schedule until after Abraham is released
from incarceration. To the extent that there is a conflict
between the court’s comments at the sentencing hearing and the
criminal judgment, it is normally the rule that the oral
sentence will control. United States v. Osborne, 345 F.3d 281,
283 n.1 (4th Cir. 2003). The remedy is to vacate the judgment
and remand to the district court for the purpose of correcting
the written judgment to conform to the oral sentence. United
States v. Morse, 344 F.2d 27, 30-31 (4th Cir. 1965). We agree
with the Government that the court’s intent is most accurately
reflected by block E on page five of the judgment form, and that
selecting this option also avoids an improper delegation of
authority to set a payment schedule. Accordingly, we affirm
Abraham’s conviction and sentence, but vacate the judgment and
remand to the district court for correction of the written
judgment to conform to its oral pronouncement of sentence.
In accordance with Anders, we have reviewed the entire
record and found no other meritorious issues for appeal. This
court requires counsel inform Abraham, in writing, of the right
5
to petition the Supreme Court of the United States for further
review. If Abraham 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 Abraham. 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 IN PART;
VACATED AND REMANDED IN PART
6