UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4218
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JING JING CHEN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00085-CCE-6)
Submitted: September 28, 2012 Decided: December 13, 2012
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Todd Allen Smith, LAW OFFICE OF TODD ALLEN SMITH, Graham, North
Carolina, for Appellant. Frank Joseph Chut, Jr., Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jing Jing Chen appeals from her convictions and
forty-four month sentence imposed pursuant to her guilty plea to
conspiracy to commit access device fraud and aggravated identity
theft. On appeal, her attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal but questioning whether the
district court erred in imposing sentence. Chen filed a pro se
supplemental brief, challenging her sentence on numerous
grounds. After careful consideration of the record, we affirm.
Chen raises several claims that the district court
miscalculated her Guidelines range. However, Chen did not
object to her presentence report (“PSR”). Therefore, the
district court was entitled to accept its factual
determinations. See United States v. Terry, 916 F.2d 157, 162
(4th Cir. 1990) (in absence of an affirmative showing that
information contained in PSR is unreliable, a district court is
free to adopt the PSR’s factual findings). Moreover, Chen’s
claims of error are not supported by the record.
Next, Chen claims that she was entitled to the
application of the safety valve in 18 U.S.C. § 3553(f) (2006),
presumably to reduce her identity theft sentence below the
statutory mandatory minimum. However, the safety valve in this
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subsection applies only to controlled substance offenses and,
thus, is inapplicable to Chen’s sentence.
Finally, Chen asserts that the U.S. Attorney’s Office
is improperly attempting to collect her restitution amount in
full while she is still in prison in contradiction of the
district court’s judgment. However, any challenge to the
execution of a sentence, rather than the sentence itself, must
be brought pursuant to 28 U.S.C.A. § 2241 (West 2006 & Supp.
2012) in the district of confinement. See United States v.
Miller, 871 F.2d 488, 489-90 (4th Cir. 1989). As such, this
claim is not cognizable on direct appeal.
In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal. We
conclude that Chen’s guilty plea was knowing and voluntary and
her below-Guidelines sentence was reasonable. Accordingly, we
grant Chen’s motion to file an informal appendix and affirm her
convictions and sentence. This court requires that counsel
inform Chen in writing of her right to petition the Supreme
Court of the United States for further review. If Chen requests
that a petition be filed, but counsel believes that such a
petition would be frivolous, then counsel may move this court
for leave to withdraw from representation. Counsel's motion
must state that a copy thereof was served on Chen. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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