UNPUBLISHED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.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 
4

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 
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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.
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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). 
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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] 
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[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 
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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