The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4835
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHONATE HEMBY-BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (CR-04-26-FL)
Submitted: October 21, 2005 Decided: November 15, 2005
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Vaughan S. Winborne, Jr., Raleigh, North Carolina, for Appellant.
Frank D. Whitney, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Shonate Hemby-Brown appeals her conviction for conspiracy
to commit bank fraud in violation of 18 U.S.C. §§ 371, 1344 (2000),
and the 58-month sentence imposed. She contends on appeal that the
indictment was defective for failing to name a federally insured
financial institution as the entity that was defrauded and that her
sentence is unconstitutional in light of United States v. Booker,
125 S. Ct. 738 (2005). For the reasons that follow, we affirm
Hemby-Brown’s conviction, but vacate the sentence and remand to
district court for resentencing.
Hemby-Brown was employed by Wireless Retail, a cellular
phone store. In the course of her employment, Hemby-Brown had
access to names, social security numbers, dates of birth, and bank
account numbers for various customers of Wireless Retail. Hemby-
Brown began to provide Levert Clarke with the personal information
of Wireless Retail’s customers. Clarke then used this information
to establish fraudulent cellular phone accounts and to activate
stolen cell phones either for his own use or to sell to others.
Clarke also shared the information received from Hemby-
Brown with Deirdra Reid and Abraham Smith, who used the information
in other fraudulent schemes. Specifically, the personal and
financial information provided by Hemby-Brown was used to
fraudulently activate lines of cellular phone service, obtain
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credit cards, purchase several vehicles, rent an apartment, and
purchase and obtain financing for a house.
A presentence report was prepared, noting that Hemby-
Brown’s base offense level was 6. U.S. Sentencing Guidelines
Manual § 2B1.1 (2002). With a loss amount over $400,000, 14 levels
were added. USSG § 2B1.1(b)(1)(H). Two additional levels were
added based on the number of victims of the offense and another two
for the unauthorized transfer and use of another individual’s
identification to produce another means of identification. USSG
§ 2B1.1(b)(2)(A), (b)(9)(C)(i).
At sentencing, Hemby-Brown objected, pursuant to Blakely
v. Washington, 542 U.S. 296 (2004), to any enhancement of her
sentence based on facts not found by a jury or admitted by her.
The court overruled the objections and found that her offense level
was properly computed to be 24. With a criminal history category
of II, Hemby-Brown’s guideline range was 57 to 60 months. USSG Ch.
5 Pt. A (Sentencing Table); see 18 U.S.C. § 371.
The court imposed a 58-month sentence. In accordance
with this court’s decision in United States v. Hammoud, 378 F.3d
426 (4th Cir.) (order), opinion issued by 381 F.3d 316, 353-54 (4th
Cir. 2004) (en banc), cert. granted and judgment vacated, 125 S.
Ct. 1051 (2005), the court also imposed an alternate sentence of 50
months pursuant to 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005).
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Hemby-Brown first challenges the sufficiency of the
indictment under Booker. She asserts that FSB Funding — the only
financial institution identified in the indictment with respect to
the bank fraud charge — was not insured by the Federal Deposit
Insurance Corporation (“FDIC”). Thus, she asserts that the
indictment would not support a bank fraud conviction, and she could
not have committed the federal crime of conspiracy to commit bank
fraud. Hemby-Brown asserts that her conviction is invalid.
Because she raises this issue for the first time on
appeal, we review for plain error. See United States v. Cotton,
535 U.S. 625, 631 (2002) (providing standard). Hemby-Brown has not
shown plain error. See United States v. Olano, 507 U.S. 725, 731-
32 (1993). Notably, post-judgment challenges to the sufficiency of
an indictment are reviewed liberally, indulging “every intendment
. . . in support of the sufficiency.” United States v. Fogel, 901
F.2d 23, 25 (4th Cir. 1990) (quoting Finn v. United States, 256
F.2d 304, 306-07 (4th Cir. 1958)). An indictment will be deemed
sufficient if it identifies the elements of the offense and informs
the defendant of the charges against him so that he can prepare his
defense and be protected against double jeopardy. See United
States v. Jackson, 327 F.3d 273, 290 (4th Cir. 2003). Here, the
indictment adequately alleged the elements of a conspiracy under
§ 371. See id.; United States v. Ellis, 121 F.3d 908, 922 (4th
Cir. 1997) (providing elements).
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Moreover, the uncontroverted evidence at trial was
clearly sufficient to prove that Hemby-Brown conspired to defraud
financial institutions that were FDIC-insured. For example,
several vehicles were purchased by using information provided by
Hemby-Brown to obtain financing from Wachovia Bank, First Citizen’s
Bank, and Chase Manhattan Bank, all FDIC-insured. See United
States v. Janati, 374 F.3d 263, 270 (4th Cir. 2004) (holding that
government may prove facts outside the overt acts alleged in the
indictment). We therefore affirm Hemby-Brown’s conviction.
Hemby-Brown also argues on appeal that her sentence is
unconstitutional because it was enhanced based on the district
court’s factual findings as to the amount of loss, the number of
victims, and the use of the identification of others in the
production of other means of identification. Because Hemby-Brown
preserved this issue by objecting at sentencing to the presentence
report based upon Blakely, we review this issue de novo. United
States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (stating
standard of review). The challenged factual findings by the
district court judge resulted in the enhancement of Hemby-Brown’s
sentencing range under the guidelines as mandatory from 1 to 7
months at base offense level 6, to 57 to 60 months at adjusted
offense level 24.
In Booker, the Supreme Court held that the federal
sentencing guidelines’ mandatory scheme — which provided for
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sentencing enhancements based on facts found by the court —
violated the Sixth Amendment. Id. at 746. The Court remedied the
constitutional violation by making the guidelines advisory through
the removal of two statutory provisions that had rendered them
mandatory. Id. at 746, 756-57. In light of the ruling in Booker,
we find that the district court conducted impermissible fact
finding in determining Hemby-Brown’s sentence in violation of the
Sixth Amendment.1 Accordingly, we vacate Hemby-Brown’s sentence
and remand this case to the district court for resentencing.2 See
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005) (citing
Booker, 125 S. Ct. at 764-65, 767).
Accordingly, while we affirm Hemby-Brown’s conviction, we
vacate her sentence and remand for resentencing. We dispense with
1
As we noted in United States v. Hughes, 401 F.3d 540, 545 n.4
(4th Cir. 2005), “[w]e of course offer no criticism of the district
judge, who followed the law and procedure in effect at the time of
[Hemby-Brown’s] sentencing.” See generally Johnson v. United
States, 520 U.S. 461, 468 (1997) (stating that an error is “plain”
if “the law at the time of trial was settled and clearly contrary
to the law at the time of appeal”).
2
Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767. On remand, the district court should first
determine the appropriate sentencing range under the Guidelines,
making all factual findings appropriate for that determination.
Hughes, 401 F.3d at 546. The court should consider this sentencing
range along with the other factors described in 18 U.S.C.A.
§ 3553(a), and then impose a sentence. Id. If that sentence falls
outside the Guidelines range, the court should explain its reasons
for the departure as required by 18 U.S.C.A. § 3553(c)(2). Id.
The sentence must be “within the statutorily prescribed range and
. . . reasonable.” Id. at 547.
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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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