UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4947

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PATSY GARDNER,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Charleston. Patrick Michael Duffy, Senior 

District Judge. (2:09-cr-00914-PMD-1)

Submitted: May 31, 2011 Decided: June 7, 2011

Before KING, KEENAN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Nicole N. Mace III, THE MACE FIRM, Myrtle Beach, South Carolina, 

for Appellant. William N. Nettles, United States Attorney, Eric 

J. Klumb, Assistant United States Attorney, Charleston, South 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Patsy Gardner pled guilty to conspiracy and 

embezzlement. The district court sentenced her to 37 months’

imprisonment, and ordered her to pay restitution. She appeals, 

challenging the adequacy of the district court's factual 

findings in overruling her objections to sentencing enhancements 

for her role in the offense and obstruction of justice. She 

also contends that the district court erred by requiring her 

personal injury settlement monies to be used to pay her 

restitution. Finding no error, we affirm.

The probation officer recommended that Gardner’s 

offense level be increased by two levels based on her 

supervisory role in the offense and another two levels based on 

her having provided a false statement to the investigators. At 

sentencing, Gardner objected to the role enhancement, asserting 

that she and her two co-defendants were equal partners in the 

scheme. She also objected to the word “substantially” in the 

probation officer’s recommendation that the court apply the 

obstruction of justice enhancement because Gardner 

“substantially impeded th[e] investigation.”

The district court ruled that “the role adjustment is 

appropriate.” The court did not make an express ruling on the 

obstruction of justice enhancement, but adopted the 

recommendations in the presentence report and sentenced Gardner 
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to 37 months’ imprisonment — the bottom of the advisory 

Guidelines range. The court also ordered Gardner to pay 

restitution in the amount of $131,747.10, due immediately. In

the written judgment, the court ordered that restitution be paid 

at $100 per month beginning thirty days after Gardner was 

released from prison. In the statement of reasons, the district 

court checked the box indicating that it “adopts the presentence 

investigation report without change.” 

The district court is required to make factual 

findings when ruling on disputed sentencing issues. See Fed. R.

Crim. P. 32(i)(3)(B) (providing that, at sentencing, the 

district court “must - for any disputed portion of the 

presentence report or other controverted matter - rule on the 

dispute or determine that a ruling is unnecessary”); United 

States v. Llamas, 599 F.3d 381, 388 (4th Cir. 2010) (“[A] 

sentencing court must provide a sufficient explanation of its 

rationale in making factual findings to support its calculation 

of a defendant’s Guidelines range.”) (internal quotation marks 

omitted). In making such requisite findings, “the district 

court may expressly adopt the recommended findings contained in 

the presentence report.” United States v. Morgan, 942 F.2d 243, 

245 (4th Cir. 1991). However, the court “must make clear on the 

record that it has made an independent finding and that its 

finding coincides with the recommended finding in the 
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presentence report.” Id.; see United States v. Walker, 29 F.3d 

908, 912 (4th Cir. 1994) (upholding sentencing court’s 

determination where court merely overruled objections without 

specific findings but court confirmed in the Statement of 

Reasons that it adopted findings in the presentence report).

Here, the district court expressly adopted the 

findings of the presentence report, and, after hearing the 

argument of the parties as to the applicability of the role 

enhancement for Gardner, determined “the role adjustment is 

appropriate.” In the presentence report, the probation officer 

analyzed the applicability of the enhancement, noting that 

Gardner directed her two co-defendants in the commission of the 

offense. She was their supervisor in the office, she directed 

or ordered them to issue and cash the misappropriated checks, 

and she received a larger share of the total embezzled funds. 

We conclude that the findings of the presentence report, as 

expressly adopted by the district court, are sufficient to 

support the role enhancement, and thus we affirm the application 

of the enhancement. See United States v. Kellam, 568 F.3d 125, 

147-48 (4th Cir. 2009) (“The court’s ruling regarding a role 

adjustment is a factual determination reviewed for clear 

error.”).

Next, Gardner contends that the district court’s 

failure to explicitly rule on her challenge to the obstruction 
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of justice enhancement requires vacatur and a remand for 

resentencing. Gardner’s objection, as it relates to the 

obstruction of justice enhancement, was merely to the use of the 

word “substantially” to describe the level to which her false 

information to the investigators “impeded th[e] investigation.” 

At sentencing, Gardner asserted only that she should have been 

given another interview to clarify and correct her earlier false 

statement. At no time did Gardner deny having provided a false 

statement when initially interviewed by the officials. Because 

Gardner failed to make a specific objection to the application 

of the enhancement and failed to make any showing that the 

enhancement should not apply, the district court was “free to 

adopt the findings in the presentence report without more 

specific inquiry or explanation.” United States v. Terry, 916 

F.2d 157, 162 (4th Cir. 1990) (“The defendant has an affirmative 

duty to make a showing that the information in the presentence 

report is unreliable, and articulate the reasons why the facts 

contained therein are untrue or inaccurate.”). Gardner did not 

make the requisite showing; therefore, the district court did 

not err in adopting the findings in the presentence report as to 

this enhancement. 

Gardner’s final challenge is to the district court’s 

determination that a $91,000 personal injury settlement due to 

Gardner should be applied to the restitution due. She asserts 
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that the court failed to consider her financial resources, 

projected earnings and other financial obligations. These are 

factors to be considered when establishing the restitution 

payment schedule. See 18 U.S.C. § 3664(f)(2) (2006). 

However, with the new information about the $91,000 

judgment Gardner was about to receive, the court determined 

under 18 U.S.C. § 3664(n) (2006), that this money should be paid 

in a lump sum. Section 3664(n) provides: “If a person 

obligated to provide restitution, or pay a fine, receives 

substantial resources from any source, including inheritance, 

settlement, or other judgment, during a period of incarceration, 

such person shall be required to apply the value of such 

resources to any restitution or fine still owed.” 18 U.S.C. 

§ 3664(n). The district court properly applied this provision 

and directed that the money be applied to the restitution 

judgment.

Accordingly, we affirm Gardner’s sentence, and affirm 

the determination that the $91,000 settlement be used to make a 

lump sum payment on the restitution debt. 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