United States v. Spigner

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4831

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

CHANDRA SPIGNER,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge. (5:06-cr-00665-MBS-1)

Submitted: May 21, 2010 Decided: June 18, 2010

Before NIEMEYER, GREGORY, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John H. Hare, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant. Winston David Holliday, Jr., Assistant
United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Chandra Spigner pled guilty to embezzlement, in

violation of 18 U.S.C.A. § 657 (West Supp. 2009). The district

court sentenced her to thirty-seven months of imprisonment, the

bottom of the advisory sentencing guidelines range. On appeal,

Spigner’s counsel has filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), stating that, in his view,

there are no meritorious issues for appeal. Counsel questions,

however, whether the district court fully complied with Rule 11

of the Federal Rules of Criminal Procedure in accepting

Spigner’s guilty plea and whether the court adequately explained

the chosen sentence. Spigner filed a pro se supplemental brief. ∗

Finding no reversible error, we affirm.

Counsel questions whether the district court fully

complied with Rule 11 in accepting Spigner’s guilty plea. We

have carefully reviewed the record and conclude that the

district court fully complied with the mandates of Rule 11.

Moreover, the district court ensured that Spigner’s guilty plea

∗
Spigner asserts that counsel provided ineffective
assistance. This court “may address [claims of ineffective
assistance] on direct appeal only if the lawyer’s
ineffectiveness conclusively appears from the record.” United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Our
review of the record leads us to conclude that counsel’s
ineffectiveness does not conclusively appear from the record.
Thus, we decline to review Spigner’s ineffective assistance
claims on direct appeal.

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was knowing and voluntary and supported by a sufficient factual

basis. See United States v. DeFusco, 949 F.2d 114, 116, 119-20

(4th Cir. 1991). We therefore affirm Spigner’s conviction.

Next, counsel questions whether the district court

provided an individualized explanation for the sentence imposed.

An appellate court reviews a sentence for reasonableness under

an abuse-of-discretion standard. Gall v. United States, 552

U.S. 38, 51 (2007). This review requires consideration of both

the procedural and substantive reasonableness of a sentence.

Id. This court must assess whether the district court properly

calculated the advisory guidelines range, considered the factors

set forth in 18 U.S.C. § 3553(a) (2006), analyzed any arguments

presented by the parties, and sufficiently explained the

selected sentence. Id. at 49-50; see United States v. Lynn, 592

F.3d 572, 576 (4th Cir. 2010); United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009). If there is no procedural error, the

appellate court reviews the substantive reasonableness of the

sentence, “examin[ing] the totality of the circumstances to see

whether the sentencing court abused its discretion in concluding

that the sentence it chose satisfied the standards set forth in

§ 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216

(4th Cir. 2010).

Here, Spigner preserved her challenge to the adequacy

of the court’s explanation of the chosen sentence by arguing in

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the district court for a variance sentence of twenty-four

months. Lynn, 592 F.3d at 578. Thus, we review her claim for

an abuse of discretion. Id. at 579. Our review of the record

on appeal convinces us that the district court did not abuse its

discretion in explaining the chosen sentence. Id. at 576 (“[I]n

explaining a sentencing decision, a court need not robotically

tick through § 3553(a)’s every subsection, particularly when

imposing a within-Guidelines sentence.”) (internal quotation

marks and citation omitted).

In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm the district court’s judgment. We deny

Spigner’s motion to appoint new counsel. This court requires

that counsel inform his client, in writing, of the right to

petition the Supreme Court of the United States for further

review. If the client 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 the client. 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