UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4933
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
APRIL NICOLE GARRETT,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior
District Judge. (7:07-cr-01463-HMH-1)
Argued: October 26, 2010 Decided: January 6, 2011
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Niemeyer and Judge King joined.
ARGUED: John Christopher Mills, Columbia, South Carolina, for
Appellant. William Jacob Watkins, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON
BRIEF: Kevin F. McDonald, Acting United States Attorney, David
C. Stephens, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
April Nicole Garrett appeals her 81-month criminal
sentence. We affirm.
I
According to the Presentence Investigation Report (“PSR”),
Garrett rented a residence from Nery Rivera, and in 2006 and
2007 she used his social security number to obtain multiple
credit cards in his name via the United States Mail. With these
fraudulently obtained credit cards, Garrett incurred charges of
approximately $90,000. She also established a business in
Rivera’s name and forged his signature on a United States Postal
Service change of address form to have his mail forwarded to her
post office box. Although Garrett falsely claimed to be in a
romantic relationship with Rivera and to have had his
permission, she committed these acts without his knowledge.
As a result of this conduct, Garrett was convicted on one
count of access device fraud (Count 1), see 18 U.S.C.
§ 1029(a)(2); two counts of aggravated identity theft (Counts 2
and 3), see 18 U.S.C. § 1028A(a)(1); and one count of submission
of a false document to the United States Postal Service (Count
4), see 18 U.S.C. § 1001(a)(3). In the PSR, the probation
officer grouped Counts 1 and 4 pursuant to U.S.S.G. § 3D1.2(d)
and recommended a total offense level of 16 and a criminal
history category of III. These recommendations yielded an
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advisory guidelines range of 27-33 months. The probation
officer also indicated that, pursuant to § 1028A(a)(1), Garrett
faced mandatory 24-month consecutive sentences for Counts 2 and
3.
At sentencing, the district court adopted the PSR findings
and guideline calculations. Garrett’s attorney asked the court
to impose a short sentence, noting that Garrett has children,
and Garrett then apologized to the Rivera family and stated that
she had always intended to pay the money back. In response, the
court observed that Garrett’s statement contradicted her trial
testimony that she had been authorized to obtain and utilize the
credit cards. The court also pointed out that Garrett had a
lengthy criminal history record that included nearly 100 arrests
for fraud-related offenses. Additionally, the court noted that
two days before her federal trial, Garrett had traveled (in
violation of her bond) to North Carolina, where she was arrested
and charged with obtaining property under false pretenses and
resisting a public officer.
The court characterized Garrett as a “dishonest person by
nature” and “one of the most significant public predators” that
it had encountered, J.A. 27, 30, and it sentenced her to 81
months of imprisonment. The court fashioned this sentence by
giving Garrett concurrent 33-month terms on Counts 1 and 4, and
3
a consecutive 24-month term each on Count 2 and Count 3. 1 The
court noted that it was “probably going to make a mistake when I
sentence you and not depart upward” and that it suspected it
would see Garrett again when she was on supervised release
because she has “a disease of being a thief.” J.A. 30, 32. 2
Garrett appealed, arguing that the district court failed to
recognize its authority to make the sentences for Counts 2 and 3
run concurrently, rather than consecutively, to one another.
Noting that the original sentencing hearing record is silent on
the rationale for consecutive sentences on the identity theft
convictions, the government moved for a remand to permit the
1
Section 1028A(b) requires that one of the identity theft
sentences must run consecutively to Garrett’s sentence on Counts
1 and 4, but it also provides the district court with discretion
to run the two identity theft sentences concurrently to each
other. In exercising its discretion to impose consecutive or
concurrent sentences for multiple convictions under § 1028A, the
court must consider a non-exhaustive list of factors that
includes the nature and seriousness of the underlying offenses,
whether the underlying offenses are groupable under § 3D1.2, and
whether the purposes of sentencing set forth in 18 U.S.C. §
3553(a)(2) are better achieved by imposing a concurrent or a
consecutive sentence. See U.S.S.G. § 5G1.2 cmt. n.2(B). The
court must adequately explain its decision to impose consecutive
sentences pursuant to § 1028A. See United States v. Dvorak, 617
F.3d 1017, 1029 (8th Cir. 2010).
2
During the criminal investigation, law enforcement
officers found a notebook in Garrett’s possession that contained
the names, social security numbers, and dates of birth of 41
people. They also found 19 credit cards, nine of which bore the
name of Nery Rivera, Nery Rivera Consulting, or Nery Rivera and
April Garrett.
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district court to address this matter. We granted the motion
and remanded the case.
At resentencing, Garrett’s attorney argued that concurrent
sentences are appropriate under the factors listed in the
commentary to § 5G1.2. Her attorney pointed out that Garrett’s
identity theft convictions did not involve violence or acts of
terrorism, both of which are listed in the § 5G1.2 commentary as
types of offenses for which the district court should consider
imposing consecutive sentences for multiple § 1028A convictions.
Counsel also noted that Counts 1 and 4 had been grouped, and he
contended that there is nothing to warrant a consecutive
sentence in this case. In doing so, counsel noted that the
court had already considered the § 3553(a) factors and found a
guideline sentence appropriate for Counts 1 and 4.
In response, the court stated that it had “considered the
totality of the circumstances of all the evidence” and noted
that Garrett “tried to ruin [Rivera’s] life by lying about her
involvement” with him. Supp. J.A. 6. The court acknowledged
that it had discretion to run the sentences to Counts 2 and 3
concurrently, and it recited the § 5G1.2 commentary factors.
The court then reimposed an 81-month sentence, concluding that
consecutive sentences for Counts 2 and 3 are appropriate based
on “the nature and seriousness of the offense” and Garrett’s
“substantial criminal history.” Supp. J.A. at 7.
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II
We review a criminal sentence for reasonableness under an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). Garrett does not challenge the district court’s
calculation of the advisory guidelines range or its decision to
impose concurrent 33-month sentences on Counts 1 and 4.
Moreover, she does not challenge the fact that § 1028A requires
that she receive a 24-month consecutive sentence for at least
one of her identity theft convictions. Instead, she contends
that the court’s imposition of consecutive 24-month sentences on
her identity theft convictions, which raises her sentence from
57 to 81 months, is unreasonable because the court failed to
adequately explain a basis for its decision.
As we have noted, a district court must consider the
factors set forth in the commentary to § 5G1.2 when deciding
whether to impose consecutive or concurrent sentences for
multiple convictions of § 1028A, and it must adequately explain
its decision to impose consecutive sentences pursuant to
§ 1028A. Assuming, without deciding, that Garrett is correct
that the district court erred by not adequately explaining its
decision to impose consecutive sentences for the identity theft
convictions, we conclude that the error is harmless. See
Puckett v. United States, 129 S. Ct. 1423, 1432 (2009)
(“procedural errors at sentencing . . . are routinely subject to
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harmlessness review”); United States v. Boulware, 604 F.3d 832,
838 (4th Cir. 2010) (sentencing error is harmless if it “did not
have a substantial and injurious effect or influence on the
result and we can say with fair assurance that the district
court’s explicit consideration of the defendant’s arguments
would not have affected the sentence imposed” (internal
punctuation altered)); United States v. Mehta, 594 F.3d 277, 283
(4th Cir.), cert. denied, 131 S. Ct. 279 (2010) (sentencing
“error is harmless if the resulting sentence was not longer than
that to which [the defendant] would otherwise be subject”
(internal punctuation altered)). 3
The district court has twice concluded that 81 months is an
appropriate sentence for Garrett. At resentencing, the district
court noted that it had discretion to impose consecutive or
concurrent sentences for Garrett’s § 1028A convictions, and it
stated that it had considered the § 5G1.2 commentary factors and
the totality of the circumstances of this case. It is readily
3
“Any error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded.” Fed. R.
Crim. P. 52(a). The government did not argue harmlessness in
its opening brief, but we directed the parties to file
supplemental briefs addressing the issue. See generally Bank of
Nova Scotia v. United States, 487 U.S. 250, 255 (1988)
(explaining that Rule 52 is “in every pertinent respect, as
binding as any statute duly enacted by Congress, and federal
courts have no more discretion to disregard the Rule’s mandate
than they do to disregard constitutional or statutory
provisions”).
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apparent from both sentencing hearings that in fashioning
Garrett’s sentence the court was particularly concerned about
the seriousness of her crimes, her lengthy criminal record
involving fraudulent conduct, and the likelihood that she would
commit similar conduct in the future. The court’s concerns are
amply supported by the record, and we believe that we can say
“with fair assurance” that any error the court may have
committed in explaining its basis for imposing consecutive
sentences would not affect the sentence that would be imposed if
we remanded this case. See Boulware, 604 F.3d at 840 (“the
notion that having to explain its analysis further might have
changed the district court’s mind . . . is simply unrealistic in
the present case, and remand for resentencing would be a
pointless waste of resources”).
III
The district court had the authority to impose consecutive
sentences on the § 1028A convictions and sentence Garrett to 81
months, and that sentence does not appear to be unreasonable
based on the record before us. Accordingly, we affirm the
sentence.
AFFIRMED
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