UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4451
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PATRICIA HARRISON,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. J. Michelle Childs, District Judge. (3:19-cr-00134-JMC-1)
Submitted: April 6, 2021 Decided: April 14, 2021
Before WILKINSON and WYNN, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Tristan M. Shaffer, Chapin, South Carolina, for Appellant. Benjamin Neale Garner,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patricia Harrison pled guilty, pursuant to a written plea agreement, to one count of
aggravated identity theft, in violation of 18 U.S.C. § 1028A. The district court sentenced
Harrison to 24 months’ imprisonment. On appeal, Harrison’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), conceding that there are no
meritorious issues for review, but questioning whether the district court plainly erred in
imposing the 24-month sentence because it is not mandatory in this case, as Harrison did
not plead guilty to a predicate offense. Although notified of her right to do so, Harrison
did not file a pro se supplemental brief. We affirm the district court’s judgment.
Because Harrison did not advance the argument she raises on appeal in the district
court, we review it for plain error. See United States v. Lockhart, 947 F.3d 187, 191 (4th
Cir. 2020) (en banc). “To succeed under plain error review, a defendant must show that:
(1) an error occurred; (2) the error was plain; and (3) the error affected h[er] substantial
rights.” Id. If Harrison makes this showing, “[w]e retain the discretion to correct [the]
error but will do so only if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks omitted).
Harrison’s statute of conviction provides:
Whoever, during and in relation to any felony violation enumerated in
subsection (c), knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person shall, in addition to the
punishment provided for such felony, be sentenced to a term of imprisonment
of 2 years.
18 U.S.C. § 1028A(a)(1). The statute then reiterates that a district court may not place a
defendant on probation, id. § 1028A(b)(1), nor “reduce the term to be imposed for [another
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offense] so as to compensate for, or otherwise take into account, any separate term of
imprisonment imposed or to be imposed for a violation of this section,” id. § 1028A(b)(3).
We conclude that the district court did not plainly err. Harrison cites no authority
in support of her argument that the two-year sentence is not mandatory when a defendant
does not plead guilty to another offense. See United States v. Harris, 890 F.3d 480, 491
(4th Cir. 2018) (“At a minimum, courts of appeals cannot correct an error pursuant to plain
error review unless the error is clear under current law.” (brackets and internal quotation
marks omitted)). Indeed, she concedes that several courts have determined that a defendant
can plead guilty to § 1028A without pleading guilty to a predicate offense. See, e.g., United
States v. López-Díaz, 794 F.3d 106, 115 (1st Cir. 2015) (“The predicate felony violation in
section 1028A is simply an element of the crime of aggravated identity theft. The statute
requires proof beyond a reasonable doubt of a felony violation, not a felony conviction.”);
United States v. Jenkins-Watts, 574 F.3d 950, 970 (8th Cir. 2009) (“[T]he government’s
decision to charge Jenkins with four counts of aggravated identity theft, and not an
additional four counts of [the predicate felony of] access device fraud, did not render the
indictment fatally insufficient so as to fail to charge the offense of conviction or deprive
the court of jurisdiction.”). And we have rejected a similar challenge to 18 U.S.C. § 2260A.
See United States v. Beck, 957 F.3d 440, 449 (4th Cir. 2020). Thus, Harrison cannot
establish plain error.
In accordance with Anders, we have reviewed the entire record in this case and have
found no other meritorious grounds for appeal. Therefore, we affirm the district court’s
judgment. This court requires that counsel inform Harrison, in writing, of the right to
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petition the Supreme Court of the United States for further review. If Harrison 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 Harrison. 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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