UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4240
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
REBECCA FOWLER FAIRCLOTH,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh,
District Judge. (3:12-cr-00058-GMG-DJJ-4)
Submitted: October 10, 2013 Decided: October 21, 2013
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William T. Rice, Martinsburg, West Virginia, for Appellant.
Stephen Donald Warner, Assistant United States Attorney, Elkins,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rebecca Fowler Faircloth appeals the fifty-seven-month
sentence imposed following her guilty plea to distribution of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006).
Faircloth’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), concluding that there are no
meritorious issues for appeal but questioning whether
Faircloth’s 1996 state conviction for uttering — for which she
was sentenced to one to ten years’ imprisonment — was improperly
counted in determining her criminal history score. Faircloth
was notified of her right to file a supplemental pro se brief
but has not done so. Following careful review of the record, we
affirm.
Because Faircloth did not object at sentencing to the
assessment of criminal history points for her uttering
conviction, our review is for plain error. See United States v.
Olano, 507 U.S. 725, 731-32 (1993). A defendant receives three
criminal history points for a prior sentence that exceeded one
year and one month of imprisonment “that was imposed within
fifteen years of the defendant’s commencement of the instant
offense.” U.S. Sentencing Guidelines Manual (“USSG”)
§ 4A1.2(e)(1) (2012); see USSG § 4A1.1(a). Also counted is any
such sentence, “whenever imposed, that resulted in the defendant
being incarcerated during any part of such fifteen-year period.”
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USSG § 4A1.2(e)(1). The unrefuted presentence report
establishes that, within the fifteen-year look-back period,
Faircloth was incarcerated pursuant to the sentence imposed
following her uttering conviction. We therefore reject
Faircloth’s challenge to the district court’s calculation of her
criminal history score.
In accordance with Anders, we have reviewed the record
and have found no meritorious issues. We therefore affirm the
district court’s judgment. This court requires that counsel
inform Faircloth, in writing, of the right to petition the
Supreme Court of the United States for further review. If
Faircloth 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 Faircloth.
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.
AFFIRMED
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