UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4145

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CYNTHIA WILLIAMS-SINGLETON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:19-cr-00127-MOC-DCK-1)

Submitted: January 26, 2021 Decided: March 2, 2021

Before HARRIS and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

James W. Kilbourne, Jr., ALLEN STAHL & KILBOURNE, PLLC, Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Cynthia Williams-Singleton pleaded guilty to a single count of wire fraud, in

violation of

, 1343. The district court sentenced Williams-Singleton to 27

months’ imprisonment and subsequently denied Williams-Singleton’s Fed. R. Crim. P.

35(a) motion to correct her sentence. Williams-Singleton now appeals. Appellate counsel

has filed a brief pursuant to Anders v. California,

(1967), stating that there

are no meritorious grounds for appeal but identifying a host of potential sentencing errors.

Counsel also questions whether the district court erred by denying Williams-Singleton’s

Rule 35(a) motion and by imposing a forfeiture money judgment in the amount of

$458,772.88. We affirm.

I.

Counsel questions whether Williams-Singleton’s sentence is procedurally and

substantively reasonable. “We review the reasonableness of a sentence under

(a) using an abuse-of-discretion standard, regardless of ‘whether [the sentence is]

inside, just outside, or significantly outside the [Sentencing] Guidelines range.’” United

States v. Nance,

(4th Cir.) (first alteration in original) (quoting Gall v.

United States,

(2007)), cert. denied,

(2020). In performing

that review, we are obliged to first “evaluate procedural reasonableness, determining

whether the district court committed any procedural error, such as improperly calculating

the Guidelines range, failing to consider the § 3553(a) factors, or failing to adequately

explain the chosen sentence.” Id. (citing Gall,

).

2 If “the district court has not committed procedural error,” we then assess the

substantive reasonableness of the sentence.

Our substantive reasonableness review

“takes into account the totality of the circumstances to determine whether the sentencing

court abused its discretion in concluding that the sentence it chose satisfied the standards

set forth in § 3553(a).” Id. (internal quotation marks omitted). “Any sentence that is within

. . . a properly calculated Guidelines range is presumptively [substantively] reasonable.

Such a presumption can only be rebutted by showing that the sentence is unreasonable

when measured against the

(a) factors.” United States v. Louthian,

(4th Cir. 2014) (citations omitted).

A.

Counsel first asserts that the district court procedurally erred by applying an abuse

of trust enhancement pursuant to U.S. Sentencing Guidelines Manual § 3B1.3 (2018). We

are satisfied, however, that the district court did not err in applying the enhancement. See

United States v. Brack,

(4th Cir. 2011) (explaining standard of review).

The record establishes that Williams-Singleton “abuse[d] the authority” of her customer

service position to “use without authority . . . means of identification” of her victims.

USSG § 3B1.3 cmt. n.2(B). Specifically, Williams-Singleton used her position and her

victims’ identifying information to make unauthorized changes to their retirement accounts

that allowed her to steal their retirement benefits. See United States v. Abdelshafi,

(4th Cir. 2010) (concluding that district court properly applied abuse of trust

enhancement where defendant used position to obtain patients’ identifying information and

3 utilized that information to file fraudulent claims). Accordingly, the district court properly

applied the abuse of trust enhancement.

B.

Next, counsel questions whether the district court incorrectly interpreted

§ 3553(a)(6) to require a sentencing court to “avoid unwarranted sentence disparities”

among only similarly situated defendants within the same district rather than throughout

the country. Counsel also asserts that the district court ignored certain national sentencing

statistics when sentencing Williams-Singleton.

Based on our review of the sentencing transcript, we conclude that the district court

adequately engaged Williams-Singleton’s sentence disparity argument. Moreover, the

district court appropriately determined that Williams-Singleton’s proposed

below-Guidelines-range sentence based on national sentencing statistics would not

generally deter others from executing a similar fraud scheme. See United States v.

Rivera-Santana,

(4th Cir. 2012) (emphasizing that “each sentencing

proceeding is inescapably individualized” and that appellate court should not “isolate a

possible sentencing disparity to the exclusion of all the other § 3553(a) factors”). We thus

discern no error in the district court’s consideration of Williams-Singleton’s sentence

disparity contention.

C.

Counsel also questions whether the district court demonstrated bias against

Williams-Singleton based on her long-time residency in New York before she moved to

North Carolina and committed the wire fraud offense. We have recognized that a sentence

4 may not be enhanced based on the defendant’s home state. United States v. McCall,

(4th Cir. 2019). Although the district court commented on sentence

disparities across the country and criticized the efficacy of sentencing practices in certain

geographic regions, including New York, the court never tied its criticisms to

Williams-Singleton’s conduct or mentioned that she was from New York. We therefore

reject counsel’s suggestion that the district court was biased against Williams-Singleton

based on her state of origin.

D.

Counsel next contends that the district court erroneously sentenced

Williams-Singleton based on inaccurate information. We have explained that a criminal

defendant has a due process right to be sentenced based on accurate information. United

States v. Nichols,

(4th Cir. 2006). Relatedly, the Supreme Court has

recognized that a sentencing court commits procedural error when it sentences a defendant

“based on clearly erroneous facts.” Gall,

. “A [factual] finding is clearly

erroneous when[,] although there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a mistake has been committed.”

United States v. Wooden,

(4th Cir. 2018) (internal quotation marks

omitted).

Counsel first asserts that the Government falsely accused Williams-Singleton of

fabricating the involvement of a coconspirator in the wire fraud scheme and that the district

court relied on that false accusation in sentencing Williams-Singleton. We conclude,

however, that the record does not establish the falsity of the Government’s representation

5 that it lacked sufficient evidence of a coconspirator’s involvement in the wire fraud

scheme. Moreover, before imposing sentence, the district court was aware of the parties’

disagreement regarding the involvement of a coconspirator. Although the district court

never stated that a coconspirator does not exist, the court appropriately questioned the

accuracy of Williams-Singleton’s claim that a coconspirator devised the entire scheme.

The district court thoroughly explained its skepticism, emphasizing that

Williams-Singleton made unauthorized changes to retirement benefit accounts, including

naming herself as a beneficiary of those accounts; falsely reported that retirement account

holders had died so that funds from their accounts would be disbursed to bank accounts

under Williams-Singleton’s control; and withdrew large amounts of cash from the bank

accounts containing the fraud proceeds. Accordingly, we are satisfied that the district court

did not sentence Williams-Singleton on the basis of inaccurate information related to the

involvement of a coconspirator.

Next, counsel contends that the district court predicated its loss amount finding on

inaccurate information because Williams-Singleton has paid or will pay taxes on the

proceeds that she obtained from the wire fraud scheme, and the court did not consider those

tax payments when determining the loss amount. We conclude that Williams-Singleton

invited any such error when she stipulated to the loss amount contained in the presentence

report. See United States v. Herrera,

(4th Cir. 1994) (explaining invited

error doctrine). Consequently, Williams-Singleton may not now contest the loss amount

on appeal. Even if she could, however, we are satisfied that the district court did not plainly

err in accepting the loss amount stated in the presentence report. See Fed. R. Crim. P.

6 32(i)(3)(A) (providing that court “may accept any undisputed portion of the presentence

report as a finding of fact”); Molina-Martinez v. United States,

(2016) (describing plain error standard).

E.

Consistent with Anders, we have otherwise reviewed the procedural and substantive

reasonableness of Williams-Singleton’s sentence and discern no error. Regarding

procedural reasonableness, the district court accurately calculated Williams-Singleton’s

advisory Guidelines range and gave each party the opportunity to present argument and

Williams-Singleton the opportunity to allocute. The district court also sufficiently

addressed defense counsel’s arguments for a below-Guidelines-range sentence, considered

the § 3553(a) factors, and provided a meaningful explanation for the sentence that it chose.

See Gall,

.

We are also satisfied that nothing in the record rebuts the presumption of substantive

reasonableness afforded to Williams-Singleton’s within-Guidelines-range sentence. See

Louthian,

. The district court appropriately emphasized that

Williams-Singleton engaged in a complex fraud scheme over a lengthy period of time and

stole a substantial amount of money from her victims. The district court also properly

stressed that a sentence below the Guidelines range would not generally deter others from

perpetrating similar fraud schemes. See United States v. Jeffery,

(4th

Cir. 2011) (recognizing that “district courts have extremely broad discretion when

determining the weight to be given each of the § 3553(a) factors”). We therefore conclude

that Williams-Singleton’s sentence is substantively reasonable.

7 II.

Next, counsel asserts that the district court erred by denying Williams-Singleton’s

Rule 35(a) motion. Williams-Singleton contended therein that the district court committed

clear error during the sentencing hearing by relying on the Government’s alleged

misrepresentation that a coconspirator was not involved in the wire fraud scheme. Under

Rule 35(a), a district court “may correct a sentence that resulted from arithmetical,

technical, or other clear error” within 14 days of sentencing. Fed. R. Crim. P. 35(a). “[T]he

scope of clear error correctable under Rule 35(a) is extremely narrow,” which comports

with Congress’ intent “to promote openness and finality in sentencing.” United States v.

Fields,

(4th Cir. 2009) (internal quotation marks omitted).

“Although courts take different approaches to Rule 35(a), all essentially agree that clear

error under the Rule requires some reversible error at the initial sentencing.”

(internal quotation marks omitted). We review a district court’s denial of a Rule 35(a)

motion for abuse of discretion. See United States v. McQuiston,

(8th

Cir. 2002); United States v. Stump,

(9th Cir. 1990).

We conclude that the district court did not abuse its discretion in denying

Williams-Singleton’s Rule 35(a) motion. The district court appropriately found that the

Government had not made any misrepresentations during the sentencing hearing.

Accordingly, the district court correctly determined that Williams-Singleton had not

established “clear error” in her sentence that would warrant relief under Rule 35(a).

8 III.

Finally, counsel argues that the district court erred by failing to reduce the forfeiture

money judgment based on taxes that Williams-Singleton has paid or will pay on the

proceeds of her wire fraud scheme. Because Williams-Singleton consented to the amount

of the forfeiture money judgment, she may not now challenge that amount on appeal. See,

e.g., United States v. Malpeso,

(2d Cir. 1997) (applying invited error

doctrine to restitution challenge). Even assuming that Williams-Singleton could contest

the amount of the forfeiture money judgment, however, we discern no plain error in the

district court’s acceptance of the amount to which the parties consented, which represents

the proceeds that Williams-Singleton obtained from the wire fraud scheme. See

(a)(2) (defining “proceeds” subject to forfeiture); United States v. Blackman,

(4th Cir. 2014) (applying § 981(a)(2) to criminal forfeiture).

In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious grounds for appeal. We therefore affirm the district court’s judgment

and the denial of Williams-Singleton’s Rule 35(a) motion. This court requires that counsel

inform Williams-Singleton, in writing, of the right to petition the Supreme Court of the

United States for further review. If Williams-Singleton 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 Williams-Singleton. We dispense with oral argument because the

9 facts and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

AFFIRMED

10