UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4414
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRACIE YVETTE CLAY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00261-WO-1)
Submitted: February 19, 2016 Decided: April 11, 2016
Before KING, DUNCAN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Robert Michael Hamilton, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tracie Yvette Clay pled guilty to two counts of health care
fraud, in violation of 18 U.S.C. §§ 2, 1347(a)(2) (2012), and
one count of money laundering, in violation of 18 U.S.C. §§ 2,
1957(a), (b) (2012). The district court calculated Clay’s
Guidelines range under the U.S. Sentencing Guidelines Manual
(2014) at 70 to 87 months’ imprisonment and sentenced Clay to 70
months’ imprisonment. The district court also ordered that Clay
pay $990,099.58 in restitution.
On appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal, but raising as issues for review
whether the district court reversibly erred in accepting Clay’s
guilty plea and abused its discretion in imposing the 70-month
prison sentence and the restitution sum. Clay was informed of
her right to file a pro se supplemental brief, but she has not
done so. The Government elected not to file a brief.
We affirm.
Because Clay did not move in the district court to withdraw
her guilty plea, the acceptance of her guilty plea is reviewed
for plain error only. United States v. Williams, 811 F.3d 621,
622 (4th Cir. 2016); United States v. Martinez, 277 F.3d 517,
524-26 (4th Cir. 2002). To demonstrate plain error, a defendant
must show: (1) there was error; (2) the error was plain; and
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(3) the error affected her substantial rights. United States v.
Olano, 507 U.S. 725, 732 (1993). In the guilty plea context, a
defendant meets her burden to establish that a plain error
affected her substantial rights by showing a reasonable
probability that she would not have pled guilty but for the
district court’s Fed. R. Crim. P. 11 omissions.
United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).
Our review of the transcript of the guilty plea hearing
leads us to conclude that the district court substantially
complied with the mandates of Rule 11 in accepting Clay’s guilty
plea and that the court’s omissions did not affect Clay’s
substantial rights. The transcript also reveals that the
district court ensured that the plea was supported by an
independent basis in fact and that Clay entered the plea
knowingly and voluntarily with an understanding of the
consequences. Accordingly, we discern no plain error in the
district court’s acceptance of Clay’s guilty plea. See United
States v. DeFusco, 949 F.2d 114, 116, 120 (4th Cir. 1991).
Turning to Clay’s sentence, we review it for reasonableness
“under a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41, 51 (2007). This review entails
appellate consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51.
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After determining whether the district court properly
calculated the defendant’s advisory Guidelines range and gave
the parties an opportunity to argue for an appropriate sentence,
we consider whether the district court considered the 18 U.S.C.
§ 3553(a) (2012) factors and any arguments presented by the
parties, selected a sentence based on clearly erroneous facts,
and sufficiently explained the selected sentence. Id. at 49-51.
If the sentence is free of “significant procedural error,” we
review the substantive reasonableness of the sentence, “tak[ing]
into account the totality of the circumstances.” Id. at 51.
Any sentence within or below a properly calculated Guidelines
range is presumptively substantively reasonable. United
States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied,
135 S. Ct. 421 (2014). Such a presumption can only be rebutted
by a showing that the sentence is unreasonable when measured
against the § 3553(a) factors. Id.
In this case, the district court did not reversibly err in
calculating the Guidelines range and properly heard argument
from counsel and allocution from Clay. The court explained that
the 70-month prison sentence was warranted in light of Clay’s
history and characteristics, the nature of her offense conduct,
and the need for the sentence to provide deterrence to criminal
conduct and to protect the public from further crimes by Clay.
18 U.S.C. § 3553(a)(1), (2)(B)-(C). Clay does not offer any
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grounds to rebut the presumption on appeal that her
within-Guidelines sentence of 70 months’ imprisonment is
substantively reasonable. Accordingly, we conclude that the
district court did not abuse its discretion in imposing the
70-month term.
Turning to the restitution order, Clay did not object to
its imposition in the district court, and we therefore review it
for plain error only. United States v. Hargrove, 625 F.3d 170,
183-84 (4th Cir. 2010). We have reviewed the record and
conclude that the district court did not plainly err in ordering
the restitution sum in this case. See 18 U.S.C. § 3663A(a)(1),
(c)(1)(B) (2012); United States v. Randall, 171 F.3d 195, 210-11
(4th Cir. 1999).
Finally, in accordance with Anders, we have reviewed the
remainder of the record in this case and have found no
meritorious issues for appeal. We therefore affirm the district
court’s judgment. We deny Clay’s motion to appoint counsel.
This court requires that counsel inform Clay, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Clay 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 Clay.
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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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