Académique Documents
Professionnel Documents
Culture Documents
No. 10-4127
No. 10-4132
Appeals from the United States District Court for the District
of South Carolina, at Greenville and Rock Hill.
Henry M.
Herlong, Jr., Senior District Judge.
(6:09-cr-00781-HMH-1;
0:03-cr-00358-HMH-1)
Submitted:
Decided:
January 4, 2011
PER CURIAM:
In these consolidated cases, Stacy Lynn Oliver appeals
the revocation of supervised release on a 2004 conviction of
wire fraud, 18 U.S.C.A. 1343 (West Supp. 2010), and a new,
thirty-seven-month
sentence
imposed
on
his
guilty
plea
to
supervised
release
on
his
2004
wire
fraud
notified the district court that Oliver had violated the terms
of
his
supervised
release,
but
recommended
taking
no
action
Oliver was
single
count
of
unauthorized
ad
prosequendum
was
use
of
credit
cards
(the
to
the
North
Carolina
dialysis.
asked Oliver and his attorney whether that was the agreement as
they understood it, and they both confirmed that it was.
The district court ordered Oliver to pay restitution,
and it imposed a sentence of twenty-four months imprisonment
for Olivers violation of the terms of his supervised release,
to
run
concurrently
with
thirty-seven-month
sentence
for
conviction
was
procedurally
4
unreasonable.
This
court
Id.;
The
court
properly
calculated
the
defendants
advisory
that
assessment,
imposed.
it
and
based
that
the
it
sentence
adequately
on
an
individualized
explained
the
sentence
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).
In
reviewing
the
substantive
reasonableness,
this
Gall,
552 U.S. at 51; United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007).
reasonableness
Oliver
of
his
has
not
sentence,
challenged
and
his
the
substantive
within-Guidelines
the
unauthorized
reflects
that
attorney.
use
there
conviction.
was
some
The
tension
sentencing
between
hearing
Oliver
and
his
consider
objections
to
the
raised.
Although
Oliver
PSR
because
stated
that
no
he
objections
wanted
to
were
file
an
court was not presented with any objections, and had no reason
to believe that granting Oliver more time would yield any, it
did not err in failing to consider objections to the PSR. *
Next,
state
Oliver
sufficiently
argues
that
the
particularized
district
basis
for
court
the
failed
sentence
his
federal
sentence
run
concurrently
with
his
state
sentence.
While
district
judges
must
provide
particularized
not
subsection.
robotically
United
tick
States
Moreover,
v.
when
through
3553(a)s
Johnson,
445
judge
F.3d
decides
every
339,
345
simply
to
require
lengthy
explanation.
Rita
v.
United
States, 551 U.S. 338, 356 (2007); Lynn, 592 F.3d at 576.
properly
preserved
claim
of
procedural
error
is
Id.
subject
A
to
The government
United States v.
that
the
within-Guidelines
sentence
of
thirty-seven
The
the
district
court
Commissions
own
of
district
Olivers
made
court
request
clear
reasoning
that
that
its
the
decision
Guidelines
adequately
his
federal
explained
its
sentence
run
v.
McQueen,
108
F.3d
7
64,
66
United
See
United States v. Iaquinta, 719 F.2d 83, 84 n.2 (4th Cir. 1983).
We are satisfied that the terms of the oral plea agreement, as
reflected
in
the
transcript
of
the
rearraignment,
are
terms
when
he
entered
the
plea.
Moreover,
Oliver
to
Stephens v.
remain
Branker,
free
570
from
F.3d
conflicts
198,
208
of
interest.
that
his
Id.
attorney
under
an
actual
conflict
of
Id.
at 209.
interest,
Oliver
must
show
that
8
[his]
interests
diverge[d]
[from
his
attorneys]
with
respect
to
material
factual
or
Moore, 134 F.3d 642, 652 (4th Cir. 1998) (en banc) (alterations
in original)).
On this record, Oliver has not established an actual
conflict.
[their]
professional
and
ethical
duty
to
zealously
v.
United
States,
(finding
256
failure
to
F.3d
pay
1213,
counsel
1218-19
showed
only
347 (1980).
trial
is
court
conflict.
aware
of
vague,
unspecified
possibility
of
In
Mickens, the Supreme Court held that, even where a trial court
9
establish
that
counsels performance.
the
conflict
adversely
affected
his
Id. at 170-73.
See
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006)
(noting ineffective assistance only cognizable on direct appeal
when it appears conclusively from the record).
adequate
development
of
the
record,
Olivers
To allow for
claim
is
more
motion.
affirm
Olivers
convictions
and
contentions
the
we
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
10