UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4769
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LENA GANT,
Defendant - Appellant.
No. 12-4946
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHANNON FISHBURNE,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Charleston. David C. Norton, District
Judge. (2:12-cr-00119-DCN-1; 2:12-cr-00119-DCN-3)
Submitted: May 14, 2013 Decided: July 11, 2013
Before WILKINSON, KING, and AGEE, Circuit Judges.
No. 12-4769 affirmed in part, vacated in part, and remanded; No.
12-4946 affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina; Timothy Kirk Truslow, THE TRUSLOW LAW FIRM, LLC,
North Myrtle Beach, South Carolina, for Appellants. Dean Hodge
Secor, Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Lena Gant and Shannon Fishburne pled guilty, pursuant
to plea agreements, to conspiracy to defraud the United States,
in violation of 18 U.S.C. § 371 (2006). The court sentenced
Gant to twenty-seven months’ imprisonment and five years’
supervised release and imposed $133,175.25 in restitution. The
court sentenced Fishburne to eighteen months’ imprisonment and
three years’ supervised release and imposed $39,196.35 in
restitution. On appeal, counsel have filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal but questioning whether the
district court complied with Fed. R. Crim. P. 11 in accepting
Appellants’ pleas and whether Appellants’ sentences are
reasonable. Appellants were advised of their right to file pro
se supplemental briefs, but they did not do so. We affirm in
part, vacate in part, and remand for resentencing.
Because Appellants did not move in the district court
to withdraw their guilty pleas, our review of their Rule 11
hearings is for plain error. United States v. Martinez, 277
F.3d 517, 525-26 (4th Cir. 2002); see United States v.
Massenburg, 564 F.3d 337, 343 (4th Cir. 2009) (providing plain
error standard in context of guilty pleas). After reviewing the
Rule 11 colloquies pursuant to Anders, we conclude that the
district court substantially complied with the requirements of
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Rule 11, failing only to inform Appellants of their right to
persist in their pleas of not guilty, and that this minor
omission did not affect Appellants’ substantial rights. See
Massenburg, 564 F.3d at 344 (holding that “mere existence of an
error cannot satisfy the requirement that [defendants] show that
[their] substantial rights were affected”); United States v.
Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (holding that
district court’s failure to provide requisite information in
Rule 11 hearing is harmless error where defendant was advised of
omitted information through another means before hearing). We
therefore affirm Appellants’ convictions.
Our review of Gant’s term of supervised release,
however, reveals that it is not free from plain error. See
United States v. Hernandez, 603 F.3d 267, 273 (4th Cir. 2010)
(providing plain error standard in context of sentencing). The
offense of conspiracy to defraud the United States carries a
statutory maximum of five years’ imprisonment, making it a Class
D felony. 18 U.S.C. §§ 371, 3559(a)(4) (2006). The maximum
term of supervised release for a Class D felony is three years.
18 U.S.C. § 3583(b)(2) (2006). Accordingly, the district court
plainly erred by sentencing Gant to a five-year term of
supervised release, exceeding the statutory maximum. Thus, we
vacate Gant’s five-year term of supervised release and remand
for resentencing.
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We review the remainder of Gant’s sentence and
Fishburne’s sentence for reasonableness under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 41 (2007). This review requires consideration of both the
procedural and substantive reasonableness of the sentence. Id.
at 51. After reviewing the sentencing transcript pursuant to
Anders, we conclude that the sentences are procedurally
reasonable, as the district court properly calculated
Appellants’ applicable Guidelines ranges, gave each party the
opportunity to present argument and to allocute, considered the
18 U.S.C. § 3553(a) (2006) factors, and sufficiently explained
the selected sentences. See Gall, 552 U.S. at 49-51 (listing
factors for court to consider when determining procedural
reasonableness). Moreover, we conclude that Appellants’ within-
Guidelines sentences, apart from Gant’s term of supervised
release, are substantively reasonable. See United States v.
Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010) (holding
that, on appeal, within-Guidelines sentences are presumptively
reasonable); United States v. Montes-Pineda, 445 F.3d 375, 379
(4th Cir. 2006) (holding that defendants bear burden of showing
“that the sentence[s are] unreasonable when measured against the
§ 3553(a) factors” (internal quotation marks omitted)). Thus,
we affirm Fishburne’s sentence and affirm the remainder of
Gant’s sentence.
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In accordance with Anders, we have reviewed the record
in this case and have found no other meritorious issues for
appeal. We therefore affirm Appellants’ convictions and
Fishburne’s sentence. We vacate Gant’s five-year term of
supervised release and remand for resentencing and affirm Gant’s
sentence in all other respects. This court requires that
counsel inform their clients, in writing, of the right to
petition the Supreme Court of the United States for further
review. If either 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 his client.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
No. 12-4769 AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
No. 12-4946 AFFIRMED
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