                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4769


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LENA GANT,

                Defendant - Appellant.



                            No. 12-4946


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHANNON FISHBURNE,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Charleston.    David C. Norton, District
Judge. (2:12-cr-00119-DCN-1; 2:12-cr-00119-DCN-3)


Submitted:   May 14, 2013                 Decided:   July 11, 2013


Before WILKINSON, KING, and AGEE, Circuit Judges.
No. 12-4769 affirmed in part, vacated in part, and remanded; No.
12-4946 affirmed by unpublished per curiam opinion.


J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina; Timothy Kirk Truslow, THE TRUSLOW LAW FIRM, LLC,
North Myrtle Beach, South Carolina, for Appellants. Dean Hodge
Secor, Assistant United States Attorney, Charleston, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             Lena Gant and Shannon Fishburne pled guilty, pursuant

to plea agreements, to conspiracy to defraud the United States,

in violation of 18 U.S.C. § 371 (2006).                        The court sentenced

Gant    to     twenty-seven     months’       imprisonment       and     five   years’

supervised release and imposed $133,175.25 in restitution.                          The

court sentenced Fishburne to eighteen months’ imprisonment and

three    years’     supervised    release        and     imposed       $39,196.35    in

restitution.       On appeal, counsel have filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that there

are no meritorious issues for appeal but questioning whether the

district court complied with Fed. R. Crim. P. 11 in accepting

Appellants’       pleas   and     whether        Appellants’        sentences       are

reasonable.       Appellants were advised of their right to file pro

se supplemental briefs, but they did not do so.                         We affirm in

part, vacate in part, and remand for resentencing.

             Because Appellants did not move in the district court

to withdraw their guilty pleas, our review of their Rule 11

hearings is for plain error.               United States v. Martinez, 277

F.3d    517,     525-26   (4th    Cir.        2002);     see    United     States    v.

Massenburg, 564 F.3d 337, 343 (4th Cir. 2009) (providing plain

error standard in context of guilty pleas).                    After reviewing the

Rule    11   colloquies   pursuant    to       Anders,    we    conclude    that    the

district court substantially complied with the requirements of

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Rule 11, failing only to inform Appellants of their right to

persist    in   their       pleas     of   not     guilty,       and   that     this   minor

omission did not affect Appellants’ substantial rights.                                   See

Massenburg, 564 F.3d at 344 (holding that “mere existence of an

error cannot satisfy the requirement that [defendants] show that

[their]    substantial        rights       were    affected”);         United    States    v.

Goins,    51    F.3d    400,     402-03      (4th     Cir.       1995)    (holding       that

district    court’s         failure   to    provide       requisite      information       in

Rule 11 hearing is harmless error where defendant was advised of

omitted information through another means before hearing).                                We

therefore affirm Appellants’ convictions.

            Our    review       of    Gant’s       term     of    supervised      release,

however, reveals that it is not free from plain error.                                    See

United States v. Hernandez, 603 F.3d 267, 273 (4th Cir. 2010)

(providing plain error standard in context of sentencing).                                The

offense of conspiracy to defraud the United States carries a

statutory maximum of five years’ imprisonment, making it a Class

D felony.       18 U.S.C. §§ 371, 3559(a)(4) (2006).                          The maximum

term of supervised release for a Class D felony is three years.

18 U.S.C. § 3583(b)(2) (2006).                    Accordingly, the district court

plainly    erred       by    sentencing       Gant     to    a     five-year      term     of

supervised release, exceeding the statutory maximum.                              Thus, we

vacate Gant’s five-year term of supervised release and remand

for resentencing.

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              We     review      the     remainder       of     Gant’s    sentence        and

Fishburne’s         sentence     for     reasonableness         under     a    deferential

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

38, 41 (2007).            This review requires consideration of both the

procedural and substantive reasonableness of the sentence.                                Id.

at 51.    After reviewing the sentencing transcript pursuant to

Anders,   we        conclude         that    the     sentences      are       procedurally

reasonable,          as    the        district       court      properly        calculated

Appellants’ applicable Guidelines ranges, gave each party the

opportunity to present argument and to allocute, considered the

18 U.S.C. § 3553(a) (2006) factors, and sufficiently explained

the selected sentences.                 See Gall, 552 U.S. at 49-51 (listing

factors   for        court      to     consider     when      determining       procedural

reasonableness).           Moreover, we conclude that Appellants’ within-

Guidelines         sentences,        apart   from    Gant’s      term     of    supervised

release, are substantively reasonable.                          See United States v.

Mendoza-Mendoza,          597    F.3d    212,      217   (4th    Cir.    2010)    (holding

that, on appeal, within-Guidelines sentences are presumptively

reasonable); United States v. Montes-Pineda, 445 F.3d 375, 379

(4th Cir. 2006) (holding that defendants bear burden of showing

“that the sentence[s are] unreasonable when measured against the

§ 3553(a) factors” (internal quotation marks omitted)).                              Thus,

we   affirm    Fishburne’s           sentence      and   affirm    the        remainder    of

Gant’s sentence.

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            In accordance with Anders, we have reviewed the record

in this case and have found no other meritorious issues for

appeal.       We     therefore        affirm         Appellants’            convictions        and

Fishburne’s       sentence.          We   vacate          Gant’s      five-year         term    of

supervised release and remand for resentencing and affirm Gant’s

sentence    in     all    other     respects.             This      court     requires         that

counsel    inform        their    clients,         in     writing,     of     the    right       to

petition    the    Supreme        Court   of       the    United      States      for    further

review.     If     either        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 his client.

            We dispense with oral argument because the facts and

legal    contentions       are     adequately            presented     in     the    materials

before    this    court     and    argument         would     not     aid    the    decisional

process.

                                                        No. 12-4769 AFFIRMED IN PART,
                                                        VACATED IN PART, AND REMANDED
                                                                 No. 12-4946 AFFIRMED




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