UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4529
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KATHLEEN NIEW,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Mary G. Lewis, District Judge.
(8:14-cr-00037-MGL-1)
Submitted: February 23, 2016 Decided: February 26, 2016
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy Ward Murphy, KOLB, MURPHY & GIVENS, Sumter, South
Carolina, for Appellant. David Calhoun Stephens, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kathleen Niew appeals the district court’s judgment
sentencing her to 87 months of imprisonment pursuant to her
convictions for wire fraud, in violation of 18 U.S.C. § 1343
(2012). Niew’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). Counsel states that there are
no meritorious grounds for appeal but questions whether the
district court plainly erred in accepting Niew’s guilty plea or
abused its discretion in imposing the sentence. Although
advised of her right to do so, Niew filed no pro se brief. The
Government has declined to file a brief.
Because Niew neither raised an objection during the Fed. R.
Crim. P. 11 proceeding, nor moved to withdraw her guilty plea in
the district court, we review her Rule 11 proceeding for plain
error. United States v. Sanya, 774 F.3d 812, 815 (4th Cir.
2014). Niew can establish plain error by demonstrating (1) an
error; (2) that is plain; (3) that affects her substantial
rights; and (4) that “seriously affects the fairness, integrity
or public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 732, 735-36 (1993) (brackets and internal
quotation marks omitted); see also Henderson v. United States,
133 S. Ct. 1121, 1126-27 (2013). To satisfy the third
requirement, Niew must show “a reasonable probability that, but
2
for the error, [s]he would not have entered the plea.” Sanya,
774 F.3d at 817 (internal quotation marks omitted).
After reviewing the record, we conclude that the district
court fully complied with Rule 11 in accepting Niew’s guilty
plea after a thorough hearing. Thus, Niew’s plea was knowing
and voluntary, and therefore final and binding. See United
States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).
We next review Niew’s sentence for reasonableness, applying
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 46 (2007). We first review for significant procedural
error, and if the sentence is free of such error, we then
consider substantive reasonableness. Id. at 51. Procedural
error includes improperly calculating the Guidelines range or
choosing a sentence “based on clearly erroneous facts.” Id. We
determine substantive reasonableness by considering the totality
of the circumstances; if the sentence imposed falls within or
below the properly calculated Guidelines range, we apply a
presumption of reasonableness that the defendant must rebut.
United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).
Further, we review for clear error the sentencing court’s
finding of amount of loss, United States v. Wynn, 684 F.3d 473,
481 (4th Cir. 2012), and will reverse only if “left with the
definite and firm conviction that a mistake has been committed,”
United States v. Crawford, 734 F.3d 339, 342 (4th Cir. 2013)
3
(internal quotation marks omitted). Upon review, we find that
the district court’s loss calculation is not clearly erroneous,
and the record contains no sign of outrageous government conduct
that might offend due process. See United States v. Jones, 18
F.3d 1145, 1152-55 (4th Cir. 1994). Therefore, Niew has not
rebutted the presumption of reasonableness accorded this
within-Guidelines sentence.
We affirm the district court’s judgment. This court
requires that counsel inform Niew, in writing, of her right to
petition the Supreme Court of the United States for further
review. If Niew 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 Niew. 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
4