UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4414

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

TRACIE YVETTE CLAY, 

Defendant - Appellant. 

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., Chief District Judge. (1:14-cr-00261-WO-1) 

Submitted: February 19, 2016 Decided: April 11, 2016

Before KING, DUNCAN, and HARRIS, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North 

Carolina, for Appellant. Robert Michael Hamilton, Assistant 

United States Attorney, Greensboro, North Carolina, for 

Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
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PER CURIAM: 

Tracie Yvette Clay pled guilty to two counts of health care 

fraud, in violation of 18 U.S.C. §§ 2, 1347(a)(2) (2012), and 

one count of money laundering, in violation of 18 U.S.C. §§ 2, 

1957(a), (b) (2012). The district court calculated Clay’s 

Guidelines range under the U.S. Sentencing Guidelines Manual

(2014) at 70 to 87 months’ imprisonment and sentenced Clay to 70 

months’ imprisonment. The district court also ordered that Clay 

pay $990,099.58 in restitution. 

On appeal, counsel has filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), stating that there are no 

meritorious grounds for appeal, but raising as issues for review 

whether the district court reversibly erred in accepting Clay’s 

guilty plea and abused its discretion in imposing the 70-month 

prison sentence and the restitution sum. Clay was informed of 

her right to file a pro se supplemental brief, but she has not 

done so. The Government elected not to file a brief. 

We affirm. 

Because Clay did not move in the district court to withdraw 

her guilty plea, the acceptance of her guilty plea is reviewed 

for plain error only. United States v. Williams, 811 F.3d 621, 

622 (4th Cir. 2016); United States v. Martinez, 277 F.3d 517,

524-26 (4th Cir. 2002). To demonstrate plain error, a defendant 

must show: (1) there was error; (2) the error was plain; and 
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(3) the error affected her substantial rights. United States v. 

Olano, 507 U.S. 725, 732 (1993). In the guilty plea context, a

defendant meets her burden to establish that a plain error 

affected her substantial rights by showing a reasonable 

probability that she would not have pled guilty but for the 

district court’s Fed. R. Crim. P. 11 omissions. 

United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009). 

Our review of the transcript of the guilty plea hearing 

leads us to conclude that the district court substantially 

complied with the mandates of Rule 11 in accepting Clay’s guilty 

plea and that the court’s omissions did not affect Clay’s 

substantial rights. The transcript also reveals that the 

district court ensured that the plea was supported by an 

independent basis in fact and that Clay entered the plea 

knowingly and voluntarily with an understanding of the 

consequences. Accordingly, we discern no plain error in the 

district court’s acceptance of Clay’s guilty plea. See United 

States v. DeFusco, 949 F.2d 114, 116, 120 (4th Cir. 1991). 

Turning to Clay’s sentence, we review it for reasonableness 

“under a deferential abuse-of-discretion standard.” Gall v. 

United States, 552 U.S. 38, 41, 51 (2007). This review entails 

appellate consideration of both the procedural and substantive 

reasonableness of the sentence. Id. at 51. 
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After determining whether the district court properly 

calculated the defendant’s advisory Guidelines range and gave 

the parties an opportunity to argue for an appropriate sentence, 

we consider whether the district court considered the 18 U.S.C. 

§ 3553(a) (2012) factors and any arguments presented by the 

parties, selected a sentence based on clearly erroneous facts, 

and sufficiently explained the selected sentence. Id. at 49-51. 

If the sentence is free of “significant procedural error,” we 

review the substantive reasonableness of the sentence, “tak[ing] 

into account the totality of the circumstances.” Id. at 51. 

Any sentence within or below a properly calculated Guidelines 

range is presumptively substantively reasonable. United 

States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 

135 S. Ct. 421 (2014). Such a presumption can only be rebutted 

by a showing that the sentence is unreasonable when measured 

against the § 3553(a) factors. Id. 

In this case, the district court did not reversibly err in 

calculating the Guidelines range and properly heard argument 

from counsel and allocution from Clay. The court explained that 

the 70-month prison sentence was warranted in light of Clay’s 

history and characteristics, the nature of her offense conduct, 

and the need for the sentence to provide deterrence to criminal 

conduct and to protect the public from further crimes by Clay. 

18 U.S.C. § 3553(a)(1), (2)(B)-(C). Clay does not offer any 
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grounds to rebut the presumption on appeal that her

within-Guidelines sentence of 70 months’ imprisonment is 

substantively reasonable. Accordingly, we conclude that the 

district court did not abuse its discretion in imposing the 

70-month term. 

Turning to the restitution order, Clay did not object to 

its imposition in the district court, and we therefore review it 

for plain error only. United States v. Hargrove, 625 F.3d 170, 

183-84 (4th Cir. 2010). We have reviewed the record and 

conclude that the district court did not plainly err in ordering

the restitution sum in this case. See 18 U.S.C. § 3663A(a)(1), 

(c)(1)(B) (2012); United States v. Randall, 171 F.3d 195, 210-11 

(4th Cir. 1999). 

Finally, in accordance with Anders, we have reviewed the 

remainder of the record in this case and have found no 

meritorious issues for appeal. We therefore affirm the district 

court’s judgment. We deny Clay’s motion to appoint counsel. 

This court requires that counsel inform Clay, in writing, of the 

right to petition the Supreme Court of the United States for 

further review. If Clay 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 Clay. 
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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. 

AFFIRMED