PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

AMANDA BOULWARE, a/k/a Amanda

L. Manigault, a/k/a Amanda Lynn

Manigault, a/k/a Amanda  No. 09-5125

Manigault-Boulware, a/k/a

Amanda L. Boulware, a/k/a

Amanda Manigault, a/k/a Amanda

Boulware-Manigault,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Joseph F. Anderson, Jr., District Judge.

(3:09-cr-00058-JFA-1)

Argued: April 8, 2010

Decided: May 11, 2010

Before TRAXLER, Chief Judge, and DUNCAN and

DAVIS, Circuit Judges.

Affirmed by published opinion. Chief Judge Traxler wrote the

opinion, in which Judge Duncan and Judge Davis joined.
COUNSEL

ARGUED: John Herman Hare, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Robert Frank Daley, Jr., OFFICE OF THE UNITED

STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: Kevin F. McDonald, Acting United States

Attorney, Anne Hunter Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Columbia, South Carolina, for Appellee. 

OPINION

TRAXLER, Chief Judge:

Amanda Boulware appeals her sentence for fraudulently

making a declaration under penalty of perjury in a bankruptcy

case, arguing that the district court used the wrong guideline

to calculate her advisory guideline range and that the court

inadequately explained its reasons for imposing a sentence

within that range. Finding no reversible error, we affirm.

I.

Since 1995, Boulware has filed for bankruptcy 16 times in

three different districts. On May 25, 2007, the U.S. Bankruptcy Court for the Northern District of Georgia entered an

order dismissing Boulware’s Chapter 13 proceeding and barring her for five years from filing another bankruptcy case.

Boulware violated that order approximately three months later

when she filed a Chapter 13 bankruptcy petition in the District

of South Carolina. Although the petition required her to disclose, under penalty of perjury, all her previous bankruptcy

cases filed in the past eight years, Boulware failed to disclose

nine such cases that she had filed in the Northern District of

Georgia.

2 UNITED STATES v. BOULWARE
Boulware was subsequently charged in a two-count indictment in the District of South Carolina. Count One charged her

with knowingly and fraudulently making a false declaration,

certification, verification, and statement under penalty of perjury by failing to disclose nine prior bankruptcy filings she

had filed in the Northern District of Georgia within the past

eight years, in violation of 18 U.S.C.A. § 152(3) (West 2000).

Count Two charged her with willfully and knowingly disobeying and resisting a lawful order of a court of the United

States, in violation of 18 U.S.C.A. § 401(3) (West Supp.

2009). Boulware pleaded guilty to Count One. The United

States Probation Office then prepared a presentence report

("PSR") applying U.S.S.G. § 2J1.3(a) for the conduct that the

indictment charged as violating 18 U.S.C.A. § 152(3). See

U.S. Sentencing Guidelines Manual § 2J1.3(a) (2008). Based

on a total offense level of 121 and a Category III Criminal

History, the PSR calculated the advisory guideline range to be

15 to 21 months’ imprisonment. Boulware objected to the

PSR, arguing that § 2B1.1, which covers offenses involving

fraud and deceit, should be applied instead of § 2J1.3, which

applies to offenses involving perjury and other related crimes.

At sentencing, the district court overruled Boulware’s

objection and adopted the PSR’s recommendations regarding

the applicable advisory guidelines range. The district court

then read a lengthy letter from Boulware and another letter

from her cousin. The cousin also made an oral statement in

which she stressed that Boulware owned a cosmetology

school, had started a non-profit organization for high school

students seeking a career in cosmetology and barbering, and

hoped to have her sickly mother move in with her soon.

Defense counsel added that Boulware supports two of her

children, aged 12 and 19. For all those reasons, defense counsel requested a sentence of probation with home detention or,

alternatively, of imprisonment for one year and a day. The

1Boulware received a two-point reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1(a). 

UNITED STATES v. BOULWARE 3
district court then asked to speak to the probation officer, following which defense counsel added that Boulware had been

on pretrial release since February 2009 and counsel was not

aware of any problems with that arrangement. 

The district court then rejected defense counsel’s request,

stating the following:

In consideration of all the factors I’m required to

consider under Section 3553(a), I determined that a

sentence within the advisory guideline range is the

appropriate sentence in this case, however I will sentence at the low end.

In doing so, I have taken into account all the factors required of me by Section 3553(a), including the

nature and characteristics of the defendant, the

nature and characteristics of the offense, the need to

promote deterrence, a specific deterrence and general deterrence, and all the other factors required.

And having done that I’m convinced that a sentence

of 15 months, the low end of the advisory range, is

appropriate.

J.A. 55. 

II.

Boulware first contends that the district court erred by

using U.S.S.G. § 2J1.3 rather than U.S.S.G. § 2B1.1 to set her

offense level. We disagree.

We review the district court’s selection of § 2J1.3 de novo.

See United States v. Davis, 202 F.3d 212, 218 (4th Cir. 2000).

The Guidelines require that a sentencing court "[d]etermine

the offense guideline section . . . applicable to the offense of

conviction (i.e., the offense conduct charged in the count of

the indictment or information of which the defendant was

4 UNITED STATES v. BOULWARE
convicted)." U.S.S.G. § 1B1.2; see United States v. Lambert,

994 F.2d 1088, 1091 (4th Cir. 1993). The applicable guideline

generally is found in the Statutory Index to the Guidelines

(Appendix A). See U.S.S.G. § 1B1.2(a). When the offense of

conviction "appear[s] to fall under the express terms of more

than one guideline," the sentencing court must choose the

guideline that is "most applicable" by "compar[ing] the guideline texts with the charged misconduct, rather than the statute

(which may outlaw a variety of conduct implicating several

guidelines) or the actual conduct (which may include factors

not elements of the indicted offense)." Lambert, 994 F.2d at

1092 (emphasis and internal quotation marks omitted).

The Index lists three guidelines for 18 U.S.C.A. § 152:

§ 2B1.1, § 2B4.1, and § 2J1.3. The parties agree that § 2B4.1,

which covers commercial bribery, is not applicable here.

Thus, the question before us is which of the remaining two

guidelines is more applicable to the offense of conviction.

Section 2B1.1, one of the Chapter 2, Part B guidelines

addressing "basic economic offenses," covers, inter alia,

fraud and deceit. Section 2J1.3, one of the Chapter 2, Part J

guidelines addressing "offenses involving the administration

of justice," covers, inter alia, perjury. 

Boulware maintains that her offense of conviction was

more akin to fraud than to perjury. She argues that she lied to

the bankruptcy court about her prior bankruptcy history "in a

misguided attempt to stay ahead of her creditors." Appellant’s

br. at 11. Boulware’s argument is unpersuasive, however,

because it does not focus on the "conduct charged in the count

of the indictment . . . of which the defendant was convicted."

U.S.S.G. § 1B1.2. The indictment did not characterize Boulware’s failure to disclose the prior bankruptcies as being part

of a plan to avoid making payment to specific creditors.

Rather, the indictment focused on the fact that her nondisclosure constituted a false declaration made to the bankruptcy

court under penalty of perjury. Thus, the gravamen of the

charge was that Boulware interfered with the bankruptcy

UNITED STATES v. BOULWARE 5
court’s administration of justice, not that she defrauded any

creditors.

Boulware argues that § 2B1.1 is the first guideline listed in

the Statutory Index for 18 U.S.C.A. § 152(3), and that

§ 2B1.1 would not have been listed had the Sentencing Commission not expected it ever to be used in connection with 18

U.S.C.A. § 152(3). That argument clearly misses the mark,

however. Section 2B1.1 is listed in the Index for § 152 generally, not for § 152(3) specifically, and the Index lists the

guidelines in the order they appear in the manual, so the fact

that § 2B1.1 is listed first is immaterial. See U.S.S.G. Appendix A. As for the argument that § 2B1.1 would not have been

listed if it were never appropriate to apply it to § 152(3)

offenses, the question before us is not whether § 2B1.1 would

ever be appropriate to use with § 152(3). Rather, we consider

whether it was appropriate to apply it based upon the offense

conduct charged in this case. 

Boulware also emphasizes that § 2B1.1 contains a specific

offense characteristic directed toward "a misrepresentation or

other fraudulent action during the course of a bankruptcy proceeding," U.S.S.G. § 2B1.1(b)(8)(B), while § 2J1.3 contains

no comparable provision and there is no specific reference to

bankruptcy in its accompanying commentary. That observation is of little consequence. As both guideline sections are

listed in the Index, the district court was required to determine

which was the better fit considering the charged offense conduct. For the reasons already discussed, the district court was

on firm ground in determining that § 2J1.3 was the better

choice.

Finally, Boulware maintains that the text of § 2J1.3 and its

commentary demonstrate that it is "directed at witness perjury

and subornation of witness perjury and not false statements in

bankruptcy proceedings, even if made under penalty of perjury." Appellant’s br. at 12. We disagree. It is unclear to

which parts of the text and commentary Boulware is referring,

6 UNITED STATES v. BOULWARE
but the applicable commentary states, without any limitation,

that § 2J1.3 "applies to perjury . . . generally prosecuted under

the referenced statutes," of which § 152 is one. U.S.S.G.

§ 2J1.3 cmt. background.

III.

Boulware next argues that the district court did not offer

sufficient reasons to show that it made an individual assessment of the specific circumstances in her case in light of the

relevant factors under 18 U.S.C.A. § 3553(a) (West 2000 &

Supp. 2009) and the arguments presented. The government

concedes that the district court committed this procedural

error, see United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009) ("Regardless of whether the district court imposes an

above, below, or within-Guidelines sentence, it must place on

the record an ‘individualized assessment’ based on the particular facts of the case before it."), but nonetheless argues that

the error was harmless. We are, of course, not bound by the

government’s concession, see United States v. Rodriguez, 433

F.3d 411, 414 n.6 (4th Cir. 2006), but even assuming that the

court’s explanation was insufficient, we agree with the government’s assertion that any error was harmless.

Since the Supreme Court issued its Booker decision, the

Sentencing Guidelines are no longer mandatory but rather are

"effectively advisory." United States v. Booker, 543 U.S. 220,

245 (2005). When sentencing criminal defendants postBooker, district courts first must correctly calculate the defendant’s sentencing range under the Sentencing Guidelines. See

Gall v. United States, 552 U.S. 38, 49 (2007). The court must

then allow the parties to argue for what they believe to be an

appropriate sentence and consider those arguments in light of

the factors set forth in 18 U.S.C.A. § 3553(a). See id. at 49-

50; United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir.

2008), cert. denied, 129 S. Ct. 1312 (2009). Sentencing courts

are statutorily required to state their reasons for imposing a

particular sentence. See 18 U.S.C.A. § 3553(c) (West Supp.

UNITED STATES v. BOULWARE 7
2009). Although a court need not necessarily issue a comprehensive, detailed opinion, the court’s explanation must nonetheless be sufficient "to satisfy the appellate court that [the

district court] has considered the parties’ arguments and has

a reasoned basis for exercising [its] own legal decisionmaking

authority." Rita v. United States, 551 U.S. 338, 356 (2007);

see also Gall, 552 U.S. at 50 ("After settling on the appropriate sentence, [the district court] must adequately explain the

chosen sentence to allow for meaningful appellate review and

to promote the perception of fair sentencing."). District

courts’ sentencing discretion is "sizeable," Abu Ali, 528 F.3d

at 266, and our review on appeal is limited to determining

whether the sentence imposed is reasonable, see Gall, 552

U.S. at 51.

Our reasonableness review has procedural and substantive

components. The procedural component, the one at issue in

this case, obligates us to ensure that the district court 

committed no significant procedural error, such as

failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or

failing to adequately explain the chosen sentence—including an explanation for any deviation

from the Guidelines range.

Id.

Here, as we have explained, the error alleged is that the district court committed procedural error by failing to adequately

explain its decision not to impose a below-guidelines sentence. We have held that arguments made under § 3553(a) for

a sentence different than the one that is eventually imposed

are sufficient to preserve claims that the district court erred in

not adequately explaining its rejection of the sentencing arguments. See United States v. Lynn, 592 F.3d 572, 578-79 (4th

8 UNITED STATES v. BOULWARE
Cir. 2010); United States v. Grier, 475 F.3d 556, 571 n.11 (3d

Cir. 2007) (en banc) ("An objection to [an inadequate explanation] will be preserved if, during sentencing proceedings,

the defendant properly raised a meritorious factual or legal

issue relating to one or more of the factors enumerated in 18

U.S.C. § 3553(a)."). Because Boulware argued that the

§ 3553(a) factors warranted a below-guidelines sentence, the

issue is properly preserved, and we therefore apply harmlesserror review in considering whether Boulware’s alleged procedural error warrants reversal.2

See Lynn, 592 F.3d at 579.

Under that standard, the government may avoid reversal only

if it demonstrates that the error "did not have a substantial and

injurious effect or influence on the" result and "we can[] say

with . . . ‘fair assurance,’ . . . that the district court’s explicit

consideration of [the defendant’s] arguments would not have

affected the sentence imposed." Id. at 585 (quoting Kotteakos

v. United States, 328 U.S. 750, 765 (1946) (internal quotation

marks omitted)). We conclude that the government has satisfied that burden here.

That any error here would be harmless is best demonstrated

by comparison of this case to one of the consolidated cases in

Lynn. In that case, Lynn was convicted of possessing with

intent to distribute, and conspiring to distribute, over 100

grams of heroin. See 21 U.S.C.A. §§ 841(a), 846 (West 1999).

Lynn’s PSR, which the sentencing court adopted, classified

Lynn as a career offender, see U.S.S.G. § 4B1.1, and determined his Guidelines range to be 360 months’ to life imprisonment. At sentencing, Lynn requested a below-guidelines

sentence for several reasons:

He contended that he fell "at the very margins of

2We note that some courts have held that there can be no harmless-error

review when a district court fails to sufficiently explain its sentence. See,

e.g., In re Sealed Case, 527 F.3d 188, 193 (D.C. Cir. 2008). We have

rejected that approach, however. See United States v. Lynn, 592 F.3d 572,

580 n.5 (4th Cir. 2010). 

UNITED STATES v. BOULWARE 9
career offender status" because "the greatest sentence that he ha[d] served prior to the imposition of

this sentence [wa]s two and a half years." He protested that the evidence demonstrated that he was not

a "drug kingpin" but only a "courier" "for the benefit

of another." He maintained that the evidence showed

that he had been paid just $1000 for the charged

crime. He also asserted that a lengthy sentence

would not achieve "specific deterrence" or "protect-

[ion of] the public," and that to impose a withinGuidelines career-offender sentence on him would

create unwarranted sentencing disparities, given the

substantial difference between state sentences and

career-offender federal sentences.

Lynn, 592 F.3d at 583 (alterations in original). The court then

sentenced Lynn to a within-guidelines sentence of 33 years,

commenting only that that sentence was "fair and appropriate

and . . . consistent with the requirements of" § 3553(a). Id.

(internal quotation marks omitted). Subsequently, just prior to

recessing, the court stated that he hoped Lynn would never

commit any more crimes. See id. The court also added that it

"never imposed a sentence on anyone . . . other than in the

public’s best interest" and mentioned that Lynn had an extensive criminal history and that "they finally caught up with

him." Id. (alteration omitted).

On appeal to us, Lynn argued that the district court had

failed to sufficiently explain its sentence. We concluded that

Lynn had properly preserved that objection. See id. at 583-84.

We further held that the court’s sentencing explanation was

insufficient. See id. at 584-85. In that regard, we noted that

the district court had not offered any individualized assessment justifying the sentence imposed and rejection of arguments for a different sentence. See id. at 584. We also noted

that the record did not clearly show that the district court considered the defendant’s evidence and arguments in determining its sentence. See id. We then turned to the question of

10 UNITED STATES v. BOULWARE
harmlessness, which we concluded "present[ed] a close question." Id. at 585. We determined, however, that the government failed to prove harmlessness because "[g]iven the

strength of Lynn’s arguments for a different sentence, we

[could not] say with any fair assurance that the district court’s

explicit consideration of those arguments would not have

affected the sentence imposed." Id.

The government’s argument for harmless error in the present case is significantly stronger than its argument in Lynn for

two reasons. First, even assuming that the district court committed procedural error in failing to explain its rejection of

Boulware’s argument for a below-guidelines sentence, the

record in this case leaves us with no doubt that the district

court considered her argument in the context of applying the

§ 3553(a) factors. The district court specifically noted on the

record that it had read Boulware’s letter and that of her cousin. The court then listened to the parties’ statements and

arguments before seeking assistance from the probation officer. Finally, the court stated that it had arrived at the 15-

month sentence by considering all of the § 3553(a) factors and

emphasized the need for specific and general deterrence.

Thus, even if the district court erred by not adequately

explaining its reasons for rejecting Boulware’s argument for

a below-guidelines sentence, we are quite confident that the

district court undertook that analysis and considered Boulware’s argument. Cf. Rita, 551 U.S. at 358 (concluding that

when record showed that district court considered defendant’s

request for a below-guidelines sentence based upon special

circumstances that in fact were not particularly special and

then imposed a within-guidelines sentence while explaining

only that the sentence was "appropriate," the district court

"must have believed that there was not much more to say");

United States v. Battle, 499 F.3d 315, 324 (4th Cir. 2007)

(similar).

Second, unlike the sentencing arguments presented by the

defendant in Lynn, the arguments that Boulware made for a

UNITED STATES v. BOULWARE 11
below-guidelines sentence were very weak. Her abuse of the

bankruptcy process, culminating in her offense conduct, in

which she misrepresented the number of her serial bankruptcies, was extensive. And, her argument for a below-guidelines

sentence amounted only to her claim that imprisoning her

would negatively impact several other people. But certainly

that state of affairs is not atypical for a defendant, and Boulware produced no evidence that the effects on others from her

imprisonment would be unusually severe. For example, there

was no evidence that in her absence there would be no one

else available to support her children—one of whom was in

college—or care for her mother. Nor was there any evidence

presented that the effect on her students would be particularly

damaging. 

In light of the strong indications that the district court fully

considered Boulware’s argument for a below-guidelines sentence, and in light of the weakness of that argument, the

notion that having to explain its analysis further might have

changed the district court’s mind—even if realistic in

Lynn—is simply unrealistic in the present case, and remand

for resentencing would be a pointless waste of resources. We

therefore hold that even assuming that the district court committed procedural error in failing to sufficiently explain the

sentence imposed in light of the § 3553(a) factors, any error

was harmless. Cf. Neder v. United States, 527 U.S. 1, 18

(1999) ("Reversal for error, regardless of its effect on the

judgment, encourages litigants to abuse the judicial process

and bestirs the public to ridicule it." (internal quotation marks

omitted)). 

IV.

For the foregoing reasons, Boulware’s sentence is affirmed.

AFFIRMED

12 UNITED STATES v. BOULWARE