UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5096
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LONNIE HEYWARD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:10-cr-01197-DCN-4)
Submitted: May 31, 2012 Decided: June 5, 2012
Before KING, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Douglas H. Westbrook, Charleston, South Carolina, for Appellant.
William Nettles, United States Attorney, M. Rhett DeHart,
Assistant United States Attorney, Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lonnie Heyward appeals from the fifty-seven-month
sentence imposed after he pleaded guilty, pursuant to a written
plea agreement, to conspiracy to make and pass counterfeit
business checks. Heyward argues on appeal that the district
court erred in holding him accountable for a loss of $409,558.66
involving over fifty victims, and increasing his offense level
based on these findings. He also argues that the court erred in
assessing one criminal history point for a time-served sentence
and that he should have received a downward variance sentence
since he alleged that he did not receive profits from the
scheme. Finding no error, we affirm.
Our review of the record reveals that the district
court properly determined Heyward’s total offense level,
criminal history category, and Sentencing Guidelines range.
Although Heyward challenges on appeal the district court’s
determination of the amount of loss, Heyward waived his right to
contest that issue by stipulating to the value in the factual
basis supporting the plea agreement. See United States v.
Williams, 29 F.3d 172, 174-75 (4th Cir. 1994) (holding that
defendant’s stipulation to drug amounts prior to sentencing
waived right to appeal issue).
Heyward also challenges the number of victims
involved. This court reviews a district court’s determination
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of the number of victims for clear error. United States v.
Castner, 50 F.3d 1267, 1274 (4th Cir. 1993). We conclude that
Heyward’s acknowledgment of the loss amount at the Fed. R. Crim.
P. 11 hearing, coupled with the case report listing the victims
and associated loss, is sufficient to establish the number of
victims enhancement. The court did not clearly err.
Further, the court did not err in assessing a criminal
history point for Heyward’s April 8, 2004 sentence for driving
under suspension. See U.S. Sentencing Guidelines Manual
§ 4A1.2, comment.(n.2) (2010). Therefore, the court did not
commit procedural error.
Once the court has determined that there is no
procedural error, it must then consider the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances.” United States v. Gall, 552 U.S.
38, 51 (2007). If the sentence imposed is within the
appropriate Guidelines range, this court may consider it
presumptively reasonable. United States v. Mendoza-Mendoza, 597
F.3d 212, 216 (4th Cir. 2010). The presumption may be rebutted
by a showing “that the sentence is unreasonable when measured
against the [18 U.S.C.] § 3553(a) [2006] factors.” United
States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006)
(internal quotation marks omitted).
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Heyward argues that he should have received a downward
variance sentence because he allegedly did not receive a
financial gain from the conspiracy and his only motive was to
protect his children. Because the district court imposed a
within-Guidelines sentence, it is deemed by this court to be
presumptively reasonable. See Mendoza-Mendoza, 597 F.3d at 216.
Heyward has not rebutted that presumption. Therefore, the
district court committed no reversible substantive error in
sentencing Heyward to fifty-seven months’ imprisonment.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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