                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4953


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

APRIL NICOLE HUCKABEE GARRETT,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:09-cr-00428-HFF-1)


Submitted:   March 8, 2010                 Decided:   March 26, 2010


Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant.        David Calhoun Stephens,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               April         Nicole    Huckabee        Garrett        pled    guilty       to   two

counts    of    falsely         representing          a   social      security        number,       in

violation of 42 U.S.C. § 408(a)(7)(B) (2006), and one count of

passing a counterfeit money order, in violation of 18 U.S.C.

§ 500 (2006), and was sentenced to twelve months in prison.                                         On

appeal, Garrett’s counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), in which he asserts that there

are no meritorious issues for appeal, but questions whether the

district court committed procedural error in sentencing Garrett.

Additionally,            a     review        of   the        record      revealed          another

potentially meritorious issue: whether the district court erred

in    failing       to       ascertain     at     sentencing          whether    Garrett        had

reviewed       the       presentence       report         (“PSR”)      with     her    attorney.

Garrett was advised of her right to file a pro se brief, but has

not   done     so.           The    Government        also      has   not     filed    a   brief.

Finding no error, we affirm.

               Under Fed. R. Crim. P. 32(i)(1)(A), the district court

“must verify that the defendant and the defendant’s attorney

have read and discussed the presentence report and any addendum

to the report.”                However, the court “need not expressly ask

whether      the     defendant         has    read        the    presentence      report        and

discussed      it    with          [her]   counsel,        provided     ‘there        is   .    .    .

evidence in the record from which one could reasonably infer’

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that the defendant and [her] counsel have read and discussed the

report.”      United States v. Lockhart, 58 F.3d 86, 88 (4th Cir.

1995) (quoting United States v. Miller, 849 F.2d 896, 897-98

(4th Cir. 1988)) (alteration in original).                        Where, as here, a

defendant fails to raise this issue before the district court,

this court reviews it only for plain error.                      Id.     Thus, we “must

be convinced that (1) an error was committed; (2) the error was

plain;     and      (3)    the    error       affected     [Garrett’s]      substantial

rights.”      Id.

              Here, the district court specifically asked Garrett if

she had the opportunity to go over the PSR and whether she had

any questions, but failed to ask whether counsel had reviewed a

copy    and   whether      Garrett          discussed    the   report    with     counsel.

Moreover,        nothing     in       the    transcript    confirms       that     Garrett

discussed the PSR with counsel prior to the sentencing hearing;

the transcript shows only that the court asked counsel if he had

any objections to the PSR, and counsel stated that he did not.

Accordingly, we find that the district court committed error,

and    that   the    error       was    plain.      Nonetheless,        Garrett    is   not

entitled to relief, as the record does not demonstrate that the

error affected the outcome of the sentencing hearing.                             The PSR

properly calculated the applicable Guidelines range, and Garrett

was    sentenced      within          that    range.       Therefore,      “remand      for

resentencing        ‘would       be     a    fruitless    exercise.’”            Lockhart,

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58 F.3d at 89 (quoting United States v. Lewis, 10 F.3d 1086,

1092 (4th Cir. 1993)).

               In the Anders brief, Garrett’s counsel challenges the

procedural      reasonableness          of    Garrett’s      sentence.         Procedural

errors include “failing to calculate (or improperly calculating)

the   Guidelines       range,        treating     the     Guidelines      as   mandatory,

failing to consider the [18 U.S.C.] § 3553(a) factors, selecting

a   sentence       based   on    clearly      erroneous      facts,    or      failing    to

adequately explain the chosen sentence--including an explanation

for   any    deviation        from    the    Guidelines     range.”         See    Gall    v.

United States, 552 U.S. 38, 51 (2007).                           Here, the Guidelines

range    was       properly     calculated,         and    the    court     treated       the

Guidelines as discretionary and articulated a rationale for the

sentence having considered the factors in § 3553(a).                              The court

read a portion of the victim impact statement highlighting the

significance of this crime on the individual victim, and noted

the need for a sentence to reflect the seriousness of the crime.

Thus,    the    district      court     did   not    commit      procedural       error    in

sentencing         Garrett.      Moreover,        the     sentence    was      within     the

properly calculated Guidelines range; therefore we presume on

appeal      that    the    sentence     is    substantively         reasonable.           See

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).                                 We

conclude that Garrett has failed to rebut that presumption.



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            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We therefore affirm Garrett’s conviction and sentence.

This court requires that counsel inform Garrett, in writing, of

the right to petition the Supreme Court of the United States for

further review.       If Garrett 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 Garrett.        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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