UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4383
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PERRY J. HAYWOOD, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:12-cr-00212-RWT-1)
Submitted: January 30, 2017 Decided: March 17, 2017
Before GREGORY, Chief Judge, and MOTZ and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nancy S. Forster, FORSTER, JOHNSON & LECOMPTE, Baltimore,
Maryland, for Appellant. Ray Daniel McKenzie, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Perry J. Haywood, Jr., pled guilty, pursuant to a written
plea agreement, to possession of access device-making equipment
with intent to defraud, in violation of 18 U.S.C. § 1029(a)(4)
(2012) (Count 2), and aggravated identity theft, in violation of
18 U.S.C. § 1028A (2012) (Count 4). The district court
sentenced Haywood to an aggregate term of 54 months’
imprisonment, consisting of 30 months on Count 2 and a
consecutive 24-month term on Count 4. In this appeal, which is
taken pursuant to Anders v. California, 386 U.S. 738 (1967),
counsel avers that there are no nonfrivolous issues but asks us
to review the district court’s loss determination and resulting
four-level increase to Haywood’s base offense level, and
questions whether the district court violated the Ex Post Facto
Clause by utilizing the 2015 edition of the U.S. Sentencing
Guidelines Manual. Haywood has filed a pro se supplemental
brief in which he raises essentially the same issues. * The
Government has declined to file a response. For the reasons
that follow, we affirm the judgment.
* To the extent Haywood’s pro se supplemental brief also
challenges the computation of his sentence by the Bureau of
Prisons, this claim may be pursued in a petition under 28 U.S.C.
§ 2241 (2012), which is properly commenced in the federal
district court for the district in which Haywood is confined.
See United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989).
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This court reviews a sentence, “whether inside, just
outside, or significantly outside the Guidelines range[,] under
a deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
sentencing factors, selected a sentence based on clearly
erroneous facts, or failed to explain sufficiently the selected
sentence. Id. at 49-51.
The lone procedural error claimed by Haywood pertains to
the district court’s determination of the applicable loss
amount. We review such a determination for clear error. United
States v. Jones, 716 F.3d 851, 859-60 (4th Cir. 2013).
When calculating the Guidelines range applicable to a fraud
offense, the Government is required to establish the amount of
loss by a preponderance of the evidence. See United States v.
Miller, 316 F.3d 495, 503 (4th Cir. 2003). Special rules govern
determinations of loss in cases like this, which involve stolen
or counterfeit credit cards and access devices. USSG § 2B1.1
cmt. n.3(F)(i). In such cases, “loss includes any unauthorized
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charges made with the counterfeit . . . or unauthorized access
device and shall be not less than $500 per access device.” Id.
The term “access device” is defined by statute, in relevant
part, to include “any card, plate, code, account number,
electronic serial number, . . . or other means of account access
that can be used, alone or in conjunction with another access
device, to obtain money.” 18 U.S.C. § 1029(e)(1) (2012).
Haywood, in his pro se supplemental brief, relies on the
stipulated statement of facts proffered in conjunction with his
plea agreement to suggest that there were only 28 account
numbers involved in this offense, and thus that the intended
loss amount was not more than $14,000. However, as counsel
acknowledges in the Anders brief, the factual stipulation also
recounted 48 plastic cards, each of which qualifies as an
“access device,” as well as several skimming devices. Even
considering only the 48 cards -- as the district court did --
based on the $500-per-device minimum loss recommendation in USSG
§ 2B1.1 cmt. n.3(F)(i), this amounted to $24,000 in loss, which
well supports application of the 4-level enhancement under USSG
§ 2B1.1(b)(1)(C). We thus discern no clear error in the
district court’s loss calculation and application of the
resulting four-level enhancement.
Counsel’s second issue in the Anders brief asks whether the
district court ran afoul of the Ex Post Facto Clause by
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utilizing the 2015 edition of the Sentencing Guidelines in
determining Haywood’s sentence. The record reveals that defense
counsel sought application of this edition of the Guidelines
because it was favorable to Haywood as it increased the minimum
dollar amount necessary for the four-level enhancement under
USSG § 2B1.1(b)(1)(C). The court acceded to counsel’s request.
Counsel does not identify, nor do we discern, any basis for the
ex post facto claim pressed here. We thus reject this issue as
meritless.
In accordance with Anders, we have reviewed the entire
record in this case and found no meritorious ground for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Haywood, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Haywood 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 Haywood. 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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