                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4127


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

STACY LYNN OLIVER,

                Defendant – Appellant.



                            No. 10-4132


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

STACY OLIVER,

                Defendant – Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Greenville and Rock Hill.       Henry M.
Herlong, Jr., Senior District Judge.      (6:09-cr-00781-HMH-1;
0:03-cr-00358-HMH-1)


Submitted:   November 12, 2010            Decided:   January 4, 2011


Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Charles T. Brooks, III, THE BROOKS LAW OFFICES, LLC, Sumter,
South Carolina; John H. Hare, Assistant Federal Public Defender,
Columbia, South Carolina, for Appellant.    William N. Nettles,
United States Attorney, William J. Watkins, Jr., Assistant
United   States  Attorney,   Greenville,  South  Carolina,   for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              In these consolidated cases, Stacy Lynn Oliver appeals

the revocation of supervised release on a 2004 conviction of

wire fraud, 18 U.S.C.A. § 1343 (West Supp. 2010), and a new,

thirty-seven-month            sentence    imposed       on    his    guilty    plea     to

unauthorized use of a credit card, in violation of 18 U.S.C.

§ 1029(a)(2) (2006).            Oliver raises three claims challenging the

unauthorized use conviction; he raises no issues concerning the

revocation of supervised release.                We affirm in both appeals.

              Oliver’s    supervised       release      on    his    2004    wire    fraud

conviction commenced in May 2006.                 In 2007, the probation office

notified the district court that Oliver had violated the terms

of   his   supervised         release,    but    recommended        taking    no    action

until the pending state charges were adjudicated.                            Oliver was

convicted and sentenced by North Carolina for those offenses,

which included credit card fraud, in May 2008.

              In July 2009, Oliver was indicted in federal court for

a    single     count    of    unauthorized       use    of    credit       cards   (“the

unauthorized use conviction”).                  The same day, a writ of habeas

corpus     ad    prosequendum       was     issued      to    the     North     Carolina

Department of Corrections, where Oliver had been serving his

state sentence.          Oliver was brought to the District of South

Carolina and housed at Just Care, a private hospital facility

that treats prisoners, in order to accommodate Oliver’s need for

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dialysis.      While at Just Care, Oliver continued to engage in

fraudulent financial transactions, defrauding both Just Care and

TNB Card Services.

             Before trial, Oliver came to an oral agreement with

the Government wherein Oliver agreed to plead guilty, and in

exchange, the Government agreed that: First, it would not charge

Oliver for the fraud committed at Just Care, but the amount of

the fraud would be added to his restitution amount; second, the

Government would not object to the sentence for his supervised

release violation running concurrently with the sentence on the

indictment; and third, if Oliver convinced the state to permit

him to serve the remainder of his state sentence in federal

custody, the Government would not object.           The district court

asked Oliver and his attorney whether that was the agreement as

they understood it, and they both confirmed that it was.

             The district court ordered Oliver to pay restitution,

and it imposed a sentence of twenty-four months’ imprisonment

for Oliver’s violation of the terms of his supervised release,

to    run   concurrently   with   a   thirty-seven-month   sentence    for

Oliver’s credit card fraud offense.           The district court made

clear that the sentence was to run consecutively with Oliver’s

state sentence.     Oliver noted a timely appeal.

             Oliver argues that his sentence on the unauthorized

use    conviction   was    procedurally   unreasonable.     This      court

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reviews a sentence for reasonableness, applying a deferential

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

38, 51 (2007).         Our review requires consideration of both the

procedural and substantive reasonableness of a sentence.                             Id.;

United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).                              The

first step requires that we determine whether the district court

committed any significant procedural error, ensuring that the

district   court      properly          calculated      the    defendant’s       advisory

Guidelines range, that it considered the factors enumerated in

18 U.S.C. § 3553(a) (2006) and any arguments presented by the

parties,   that       it     based      the     sentence      on    an    individualized

assessment,     and        that    it      adequately      explained       the    sentence

imposed.   See Gall, 552 U.S. at 50-51; Lynn, 592 F.3d at 575;

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

           In     reviewing          the      substantive      reasonableness,       this

court considers the “totality of the circumstances, including

the extent of any variance from the Guidelines range.”                              Gall,

552 U.S. at 51; United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007).            Oliver      has    not   challenged          the   substantive

reasonableness        of     his     sentence,       and      his    within-Guidelines

sentence is afforded an appellate presumption of reasonableness.

See United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008).

           Oliver first asserts that the district court failed to

consider his objections to the presentence report (“PSR”) for

                                               5
the     unauthorized         use       conviction.             The    sentencing         hearing

reflects         that    there    was     some    tension      between         Oliver    and    his

attorney.         However, the district court did not err in failing to

consider         objections       to    the      PSR    because       no    objections         were

raised.           Although       Oliver    stated       that    he    wanted       to    file    an

objection to the PSR, he could not identify any objections in

even the most general terms.                     Nor could Oliver’s attorney point

to any possible grounds for objection.                               Because the district

court was not presented with any objections, and had no reason

to believe that granting Oliver more time would yield any, it

did not err in failing to consider objections to the PSR. *

                 Next,    Oliver       argues     that   the     district        court       failed

state      a     sufficiently       particularized           basis      for      the     sentence

imposed because it failed to explain its denial of his request

that       his    federal     sentence        run      concurrently         with       his   state

sentence.

                 While    district      judges        must   provide       a    particularized

assessment justifying the sentence imposed in each case, they

need        not     “robotically           tick        through        § 3553(a)’s            every

subsection.”             United     States       v.    Johnson,       445      F.3d     339,    345

(4th Cir. 2006).             Moreover,        “when      a   judge     decides         simply    to

       *
       We note that, even on appeal, Oliver has not identified
any potential errors in the PSR, nor has he given any indication
as to what his objections might have been.



                                                  6
apply the Guidelines to a particular case, doing so will not

necessarily       require      lengthy      explanation.”                Rita      v.     United

States, 551 U.S. 338, 356 (2007); Lynn, 592 F.3d at 576.                                       A

properly    preserved         claim    of   procedural          error        is    subject    to

reversal, unless the error was harmless.                           Id.       The government

can establish harmless error by showing that the error had no

significant, injurious impact on the sentence.                           United States v.

Boulware, 604 F.3d 832, 838 (4th Cir. 2010).

            Here, the district court stated that it considered the

§ 3553(a) factors, considered the Guidelines as advisory, and

concluded       that    the   within-Guidelines             sentence     of       thirty-seven

months and payment of restitution satisfied the purposes of the

statute.         The    district      court        made    clear      that    its       decision

adopted    “the        Commission’s      own       reasoning     that     the      Guidelines

sentence is a proper sentence.”                See Rita, 551 U.S. at 357.

            The        district    court       also        adequately        explained       its

denial     of    Oliver’s      request      that          his   federal       sentence       run

concurrently with his state sentence.                       The record suggests that

Oliver either misrepresented or may not have accurately recalled

the terms of the oral plea agreement to which he assented at his

rearraignment.           The possibility of the latter circumstance is

among the reasons we have previously stated that it “behooves

the government to reduce all oral pleas to writing.”                                     United

States     v.      McQueen,        108      F.3d          64,    66      (4th Cir. 1997).

                                               7
Nevertheless, this court enforces oral plea agreements.                                  See

United States v. Iaquinta, 719 F.2d 83, 84 n.2 (4th Cir. 1983).

We are satisfied that the terms of the oral plea agreement, as

reflected       in     the     transcript          of      the       rearraignment,      are

sufficiently clear and unambiguous, and that Oliver understood

those    terms       when    he     entered       the     plea.        Moreover,   Oliver

indicated when he entered his plea that he understood that the

district court was not bound by the terms of the plea agreement.

Therefore, this claim entitles Oliver to no relief.

               Finally, Oliver argues that his attorney was laboring

under a conflict of interest because Oliver had not paid him,

and that the district court erred in failing to hold a hearing

to inquire into the possibility of a conflict of interest.

               The Sixth Amendment right to effective assistance of

counsel includes a duty of loyalty by counsel “that requires the

attorney       to     remain        free    from         conflicts       of    interest.”

Stephens v.         Branker,        570    F.3d         198,     208    (4th Cir. 2009).

However, where a defendant identifies the mere possibility of a

conflict, that potential “may not, in practice, contravene this

duty of loyalty.”            Id.     In order to prevail, a defendant must

show    that    his    attorney      labored       under        an   actual   conflict    of

interest that adversely affected the lawyer’s performance.                               Id.

at 209.        To establish the existence of an actual conflict of

interest,      Oliver       “must   show   that         [his]    interests    ‘diverge[d]

                                              8
[from   his    attorney’s]       with     respect       to   a   material       factual   or

legal issue or to a course of action.’”                      Id. (quoting Gilbert v.

Moore, 134 F.3d 642, 652 (4th Cir. 1998) (en banc) (alterations

in original)).

              On this record, Oliver has not established an actual

conflict.      A fee dispute does not ordinarily establish an actual

conflict because courts “presume that counsel will continue to

execute   [their]         professional      and     ethical       duty     to    zealously

represent [their] client[s], notwithstanding the fee dispute.”

United States v. O’Neil, 118 F.3d 65, 72 (2d Cir. 1997); see

Caderno       v.        United    States,         256        F.3d    1213,         1218-19

(11th Cir. 2001)         (finding     failure      to    pay     counsel    showed    only

possibility of conflict of interest, not actual conflict, though

counsel’s letters to defendant indicated his frustration at not

being paid).

              Turning to Oliver’s argument that the district court

should have held a hearing to determine whether there was an

actual conflict, the Supreme Court has required such an inquiry

when “the trial court knows or reasonably should know that a

particular conflict exists.”               Cuyler v. Sullivan, 446 U.S. 335,

347 (1980).        However, this is “not to be confused with when the

trial   court      is    aware   of   a   vague,    unspecified          possibility      of

conflict.”      Mickens v. Taylor, 535 U.S. 162, 168-69 (2002).                           In

Mickens, the Supreme Court held that, even where a trial court

                                            9
fails to inquire into a potential conflict of interest about

which it knew or should reasonably have known, a defendant must

still     establish     that        the    conflict      adversely     affected    his

counsel’s performance.          Id. at 170-73.

            Here, neither an actual conflict nor an adverse impact

on Oliver’s counsel appears conclusively from the record.                           See

United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006)

(noting ineffective assistance only cognizable on direct appeal

when it appears conclusively from the record).                         To allow for

adequate    development        of    the    record,      Oliver’s    claim    is   more

appropriately raised in a 28 U.S.C.A. § 2255 (West. Supp. 2010)

motion.      United States v. Baptiste, 596 F.3d 214, 216-17 n.1

(4th Cir. 2010).

            Accordingly,        we        affirm    Oliver’s        convictions     and

sentences.      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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