United States v. Gregory Cline , 560 F. App'x 195 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4354
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY L. CLINE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Martin K.
Reidinger, District Judge. (2:11-cr-00009-MR-1)
Submitted: December 23, 2013 Decided: March 11, 2014
Before WYNN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Henderson Hill, Executive Director, Ross Hall Richardson, First
Assistant Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., 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Unpublished opinions are not binding precedent in this circuit.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:
Gregory L. Cline took money from a donation box in the
Great Smoky Mountains National Park and subsequently pled
guilty, pursuant to a plea agreement, to tampering, in violation
of 36 C.F.R. § 2.31(a)(1) (2013). At the end of Cline’s
allocution at sentencing, the magistrate judge asked Cline how
much money he took from the donation box, to which he replied,
“$57, sir.” The magistrate judge sentenced Cline to fifty-seven
days’ imprisonment and $57 in restitution. Cline appealed his
sentence to the district court and the district court affirmed
the criminal judgment. Cline now appeals the district court’s
order.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), finding no meritorious grounds
for appeal, but questioning Cline’s fifty-seven day sentence and
asserting that the magistrate judge violated Cline’s Fifth
Amendment rights by questioning him at sentencing about how much
money he took. Cline was advised of his right to file a pro se
supplemental brief but he did not file one. The Government
declined to file a brief.
A district court reviewing a bench trial conducted by
a magistrate judge applies the same standards an appellate court
applies in assessing a criminal judgment imposed by a district
court. United States v. Bursey, 416 F.3d 301, 305 (4th Cir.
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2005); see Fed. R. Crim. P. 58(g)(2)(D). In turn, our “review
of a magistrate court’s trial record is governed by the same
standards as was the district court’s appellate review.”
Bursey, 416 F.3d at 305-06.
Cline was sentenced for a “petty offense” to which
the federal Sentencing Guidelines do not apply. See U.S.
Sentencing Guidelines Manual § 1B1.9 (2010). “In the absence of
an applicable sentencing guideline, the court shall impose an
appropriate sentence, having due regard for the purposes set
forth in [18 U.S.C. § 3553(a)(2) (2012)].” 18 U.S.C.
§ 3553(b)(1) (2012). Moreover, our review of “a sentence
imposed for an offense for which there is no Guideline
[examines] whether it is ‘plainly unreasonable.’” United
States v. Deffenbaugh, 709 F.3d 266, 274 (4th Cir. 2013) (citing
18 U.S.C. § 3742(a) (2012)).
With these standards in mind, we have reviewed Cline’s
sentence and conclude that it was not plainly unreasonable. We
further conclude that the magistrate judge did not plainly err
in asking Cline how much money he took from the donation box. *
*
Because Cline did not object at the sentencing hearing to
the magistrate judge’s question, we review his Fifth Amendment
challenge for plain error. United States v. Carthorne, 726 F.3d
503, 509 (4th Cir. 2013).
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We have examined the entire record on appeal in
accordance with the requirements of Anders and have found no
meritorious issues for appeal. Accordingly, we affirm. This
court requires that counsel inform Cline, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Cline 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 Cline. 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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