                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4271


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ELIZABETH MARGARET O’NAN,

                Defendant – Appellant.

------------------------

THOMAS   JEFFERSON   CENTER     FOR   THE   PROTECTION    OF   FREE
EXPRESSION,

                Amicus Supporting Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00044-MR-1)


Submitted:   October 25, 2011               Decided:   November 4, 2011


Before MOTZ, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Elizabeth Margaret O’Nan, Appellant Pro Se. David A. Thorneloe,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.   J. Joshua Wheeler, THE THOMAS JEFFERSON CENTER
FOR   THE  PROTECTION   OF   FREE  EXPRESSION,   Charlottesville,
Virginia, for Amicus Supporting Appellant.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Elizabeth Margaret O’Nan appeals the district court’s

order affirming the magistrate judge’s judgment finding O’Nan

guilty of violating 36 C.F.R. § 261.12(d) ∗, imposing a fine and

restitution, and ordering O’Nan not to interfere with the use of

a Forest Service road for five years.

            On appeal, O’Nan first argues that the court violated

her First Amendment rights by punishing her for speech that was

“merely the expression of her sincerely held beliefs about her

property rights.”    Second, she argues that the magistrate judge

made several erroneous factual findings.        Third, she argues that

the   government   illegally   seized   the   Forest   Service   road   in

question.     Fourth, she argues that the government violated her

right to equal protection by punishing her but not punishing

various hunters who she alleges have trespassed on her property.

The Thomas Jefferson Center for the Protection of Free Speech

filed an amicus brief in support of O’Nan, arguing that her

prosecution violated her First Amendment rights.

            In “cases raising First Amendment issues, an appellate

court has the obligation to make an independent examination of

the whole record to ensure that the judgment does not constitute


      ∗
       This regulation prohibits interfering with the use of a
National Forest System road.



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a forbidden intrusion on the field of free expression.”                                   Bose

Corp.    v.     Consumers       Union    of   U.S.,      Inc.,       466   U.S.    485,    486

(1984).        Therefore, we review O’Nan’s First Amendment argument

de novo.        Snyder v. Phelps, 580 F.3d 206, 218 (4th Cir. 2009).

O’Nan’s remaining arguments on appeal were not raised below.

Accordingly, as to those arguments, this court applies the plain

error standard of review, which requires that O’Nan show that

there     is     an    “error”     that       is     “plain”         and   that     “affects

substantial rights.”            United States v. Olano, 507 U.S. 725, 731-

32 (1993).

               O’Nan’s       argument    that      the   court       violated     her     First

Amendment rights by punishing her for speech that was “merely

the expression of her sincerely held beliefs about her property

rights,”       is     without    merit.         O’Nan     was    prosecuted         not    for

exercising her free speech rights, but for interfering with the

use of a Forest Service Road.                       The Amicus Brief argues that

because O’Nan had no unlawful intent, she cannot be punished

under the First Amendment.                However, this argument is based on

the     premise       that     O’Nan’s    behavior        was        nothing      more    than

protected speech, a premise we reject.                      Further, to the extent

that the Amicus Brief implicitly argues that the regulation is

overbroad, the Supreme Court has cautioned that the use of the

overbreadth doctrine in this situation is “strong medicine” that

should     be       used     “sparingly       and    only       as     a   last     resort.”

                                              4
Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).                            “[O]verbreadth

scrutiny has generally been somewhat less rigid in the context

of   statutes    regulating         conduct      in      the    shadow      of     the    First

Amendment, but doing so in a neutral, noncensorial manner.”                                   Id.

at 614.      This regulation, on its face, regulates conduct, not

expressive speech.           O’Nan has thus failed to show that her First

Amendment rights were violated.

             O’Nan     next       argues    that      the      magistrate        judge        made

several     erroneous       factual      findings.             We    conclude       that      the

magistrate judge’s factual findings are supported by the record,

even   though    O’Nan        provided      some      testimonial           evidence          that

conflicted      with        the    magistrate         judge’s        factual        findings.

Assessing the credibility of witnesses is within the province of

the trier of fact, who, in this case, was the magistrate judge.

United States v. Jordan, 509 F.3d 191, 203 n.8 (4th Cir. 2007).

Moreover,    none      of    the    factual      issues        O’Nan      raises    have      any

bearing on whether she violated 36 C.F.R. § 261.12(d).                                     Thus,

this argument is also without merit.

             O’Nan      claims       the      government            is     guilty        of     an

unconstitutional “taking” of her property because her permit to

use the road in question provided that the road would not be

open   to   public     use.        The     record     reveals,           however,    that      in

granting     O’Nan’s        use     permit,        the      government        specifically

reserved the right to “use the road for all purposes deemed

                                             5
necessary or desirable,” which extends to members of the public.

Accordingly, O’Nan presents no credible argument that there has

been any “taking” of her property.

               Finally, O’Nan argues that the government violated her

Fourteenth Amendment right to equal protection by punishing her

but not punishing hunters who trespassed on her property.                       To

succeed on an equal protection claim, a plaintiff must show that

she has been treated differently from other similarly-situated

individuals and that the unequal treatment was the result of

intentional or purposeful discrimination.                Veney v. Wyche, 293

F.3d    726,    730   (4th   Cir.   2002).     O’Nan    failed   to    make    that

showing.       She provides no basis for her conclusory assertions

that hunters have trespassed on her land without punishment.

Moreover, even assuming such trespassing, the hunters are not

similarly      situated      to   O’Nan   because    trespassing      on    private

property is not the same as interfering with the use of a public

road.    Thus, O’Nan is not entitled to relief on this argument.

               We deny O’Nan’s motion for appointment of counsel.               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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