                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4707


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHERI BURNETTE ABRAHAM,

                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-00436-HFF-1)


Submitted:   June 23, 2011                 Decided:   June 30, 2011


Before WILKINSON, KING, and WYNN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


Benjamin   T.   Stepp,   Assistant   Federal   Public   Defender,
Greenville, South Carolina, for Appellant. William N. Nettles,
United States Attorney, David C. Stephens, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Cheri       Burnette     Abraham       pled     guilty,        without      a    plea

agreement,      to        bank   fraud,    in   violation         of     18    U.S.C.       § 1344

(2006).     The district court sentenced Abraham to thirty months’

imprisonment and ordered her to pay $600,000 in restitution to

the victims in monthly installments of $300.                             Counsel has filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting that, in his opinion, there are no meritorious issues

for    appeal,        but    questioning        whether         Abraham’s           sentence      is

reasonable.*         Upon review of the record, we directed supplemental

briefing       from       the    parties     on       whether      the        district         court

committed       plain       error   by    failing         to    make   specific           findings

addressing          the     statutory      factors        set     forth       in     18    U.S.C.

§ 3664(f)(2)(A)-(C) (2006) in entering the restitution order.

We    affirm    Abraham’s        conviction         and    sentence,          but    vacate      the

judgment and remand to the district court to correct the written

judgment       to    reflect      the     restitution          payment    option          that   is

consistent with its oral pronouncement at sentencing.

               We     review      Abraham’s         sentence      using        an     abuse      of

discretion standard of review.                      Gall v. United States, 552 U.S.

38, 51 (2008).              The first step in this review requires us to

       *
       Abraham was informed of her right to                                   file a pro se
supplemental brief, but has not done so.                                      The Government
declined to file a responsive brief.


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ensure     that     the       district      court       committed        no     significant

procedural error.             United States v. Evans, 526 F.3d 155, 161

(4th     Cir.     2008).           Procedural      errors        include       “failing   to

calculate (or improperly calculating) the Guidelines range or

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

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal

quotation       marks    omitted).         The     district       court    must    make   an

individualized          assessment        based    on     the     facts       presented   by

applying the relevant § 3553(a) factors to the circumstances of

the case.       Gall, 552 U.S. at 51.               The court then considers the

substantive reasonableness of the sentence, taking into account

the totality of the circumstances.                  Id.

            Our review of the record leads us to conclude that the

district court did not procedurally err in sentencing Abraham.

The court properly calculated the Guidelines range, considered

the    relevant         § 3553(a)         factors,        made     an      individualized

assessment       based        on    the    facts     presented,          and     adequately

explained its reasons for the chosen sentence.

            Nor         was        the     sentence         imposed           substantively

unreasonable.            A    sentence      within        the     properly       calculated

Guidelines range is presumptively reasonable.                           United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007).                               The thirty-month

sentence was in the middle of a properly calculated Guidelines



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range,     and   Abraham    has     failed       to    rebut    the   presumption     of

reasonableness accorded that sentence.

             At sentencing, the district court announced a sentence

that included restitution payments of $300 per month, commencing

sixty days after Abraham’s release from incarceration.                              When

counsel for Abraham suggested that her income at that time might

not support a $300 monthly payment, the court replied that it

would amend the sentence to “put the standard language in there

. . . to say that probation is empowered to adjust it up or down

for the restitution based upon her ability to pay.                         So if she

can’t, then they’ll adjust it.”                  The written judgment, however,

reflects the $300 per month payment schedule initially announced

by   the   court,   and     block    D    is    checked    on    page   five   of    the

judgment form.          Abraham asserts that the court plainly erred in

failing to make findings regarding her ability to pay and in

improperly delegating to the probation officer its authority to

establish a payment schedule.                   The Government argues that the

court’s failure to make findings as to Abraham’s ability to pay

was mooted by the court’s amendment that postponed determination

of a payment schedule until her release from prison, when her

then-existing financial circumstances may be considered.                             The

Government       also    suggests        that    any     improper     delegation     of

authority may be cured by simply correcting the written judgment



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to check block E on page five, which indicates that the court

will determine a payment schedule after Abraham’s release.

              Our review of the record leads us to conclude that the

district court clearly intended to amend its initial statement

regarding       the     restitution        payment       schedule        to      delay

determination of the schedule until after Abraham is released

from incarceration.            To the extent that there is a conflict

between the court’s comments at the sentencing hearing and the

criminal      judgment,   it     is    normally    the   rule     that    the     oral

sentence will control.           United States v. Osborne, 345 F.3d 281,

283 n.1 (4th Cir. 2003).              The remedy is to vacate the judgment

and remand to the district court for the purpose of correcting

the written judgment to conform to the oral sentence.                           United

States v. Morse, 344 F.2d 27, 30-31 (4th Cir. 1965).                          We agree

with the Government that the court’s intent is most accurately

reflected by block E on page five of the judgment form, and that

selecting     this    option    also    avoids    an   improper    delegation       of

authority to set a payment schedule.                   Accordingly, we affirm

Abraham’s conviction and sentence, but vacate the judgment and

remand   to    the    district    court    for    correction    of   the       written

judgment to conform to its oral pronouncement of sentence.

              In accordance with Anders, we have reviewed the entire

record and found no other meritorious issues for appeal.                          This

court requires counsel inform Abraham, in writing, of the right

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to petition the Supreme Court of the United States for further

review.     If   Abraham      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 Abraham.          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 IN PART;
                                                VACATED AND REMANDED IN PART




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