UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-4933

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

APRIL NICOLE GARRETT,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Spartanburg. Henry M. Herlong, Jr., Senior 

District Judge. (7:07-cr-01463-HMH-1)

Argued: October 26, 2010 Decided: January 6, 2011

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished opinion. Judge Shedd wrote the opinion,

in which Judge Niemeyer and Judge King joined.

ARGUED: John Christopher Mills, Columbia, South Carolina, for 

Appellant. William Jacob Watkins, Jr., OFFICE OF THE UNITED 

STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON 

BRIEF: Kevin F. McDonald, Acting United States Attorney, David 

C. Stephens, Assistant United States Attorney, OFFICE OF THE 

UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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SHEDD, Circuit Judge:

April Nicole Garrett appeals her 81-month criminal 

sentence. We affirm.

I

According to the Presentence Investigation Report (“PSR”), 

Garrett rented a residence from Nery Rivera, and in 2006 and 

2007 she used his social security number to obtain multiple 

credit cards in his name via the United States Mail. With these 

fraudulently obtained credit cards, Garrett incurred charges of 

approximately $90,000. She also established a business in 

Rivera’s name and forged his signature on a United States Postal 

Service change of address form to have his mail forwarded to her 

post office box. Although Garrett falsely claimed to be in a 

romantic relationship with Rivera and to have had his 

permission, she committed these acts without his knowledge.

As a result of this conduct, Garrett was convicted on one 

count of access device fraud (Count 1), see 18 U.S.C. 

§ 1029(a)(2); two counts of aggravated identity theft (Counts 2 

and 3), see 18 U.S.C. § 1028A(a)(1); and one count of submission 

of a false document to the United States Postal Service (Count 

4), see 18 U.S.C. § 1001(a)(3). In the PSR, the probation 

officer grouped Counts 1 and 4 pursuant to U.S.S.G. § 3D1.2(d) 

and recommended a total offense level of 16 and a criminal 

history category of III. These recommendations yielded an 
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advisory guidelines range of 27-33 months. The probation 

officer also indicated that, pursuant to § 1028A(a)(1), Garrett 

faced mandatory 24-month consecutive sentences for Counts 2 and 

3.

At sentencing, the district court adopted the PSR findings 

and guideline calculations. Garrett’s attorney asked the court 

to impose a short sentence, noting that Garrett has children, 

and Garrett then apologized to the Rivera family and stated that 

she had always intended to pay the money back. In response, the 

court observed that Garrett’s statement contradicted her trial 

testimony that she had been authorized to obtain and utilize the 

credit cards. The court also pointed out that Garrett had a 

lengthy criminal history record that included nearly 100 arrests 

for fraud-related offenses. Additionally, the court noted that 

two days before her federal trial, Garrett had traveled (in 

violation of her bond) to North Carolina, where she was arrested 

and charged with obtaining property under false pretenses and 

resisting a public officer.

The court characterized Garrett as a “dishonest person by 

nature” and “one of the most significant public predators” that 

it had encountered, J.A. 27, 30, and it sentenced her to 81 

months of imprisonment. The court fashioned this sentence by 

giving Garrett concurrent 33-month terms on Counts 1 and 4, and 
4

a consecutive 24-month term each on Count 2 and Count 3.1 The 

court noted that it was “probably going to make a mistake when I 

sentence you and not depart upward” and that it suspected it 

would see Garrett again when she was on supervised release 

because she has “a disease of being a thief.” J.A. 30, 32.2

Garrett appealed, arguing that the district court failed to 

recognize its authority to make the sentences for Counts 2 and 3 

run concurrently, rather than consecutively, to one another. 

Noting that the original sentencing hearing record is silent on 

the rationale for consecutive sentences on the identity theft 

convictions, the government moved for a remand to permit the 

 1 Section 1028A(b) requires that one of the identity theft 

sentences must run consecutively to Garrett’s sentence on Counts 

1 and 4, but it also provides the district court with discretion 

to run the two identity theft sentences concurrently to each 

other. In exercising its discretion to impose consecutive or 

concurrent sentences for multiple convictions under § 1028A, the 

court must consider a non-exhaustive list of factors that 

includes the nature and seriousness of the underlying offenses, 

whether the underlying offenses are groupable under § 3D1.2, and 

whether the purposes of sentencing set forth in 18 U.S.C. § 

3553(a)(2) are better achieved by imposing a concurrent or a 

consecutive sentence. See U.S.S.G. § 5G1.2 cmt. n.2(B). The 

court must adequately explain its decision to impose consecutive 

sentences pursuant to § 1028A. See United States v. Dvorak, 617 

F.3d 1017, 1029 (8th Cir. 2010).

2 During the criminal investigation, law enforcement 

officers found a notebook in Garrett’s possession that contained

the names, social security numbers, and dates of birth of 41 

people. They also found 19 credit cards, nine of which bore the 

name of Nery Rivera, Nery Rivera Consulting, or Nery Rivera and 

April Garrett.
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district court to address this matter. We granted the motion

and remanded the case.

At resentencing, Garrett’s attorney argued that concurrent

sentences are appropriate under the factors listed in the 

commentary to § 5G1.2. Her attorney pointed out that Garrett’s

identity theft convictions did not involve violence or acts of 

terrorism, both of which are listed in the § 5G1.2 commentary as 

types of offenses for which the district court should consider 

imposing consecutive sentences for multiple § 1028A convictions. 

Counsel also noted that Counts 1 and 4 had been grouped, and he 

contended that there is nothing to warrant a consecutive 

sentence in this case. In doing so, counsel noted that the 

court had already considered the § 3553(a) factors and found a 

guideline sentence appropriate for Counts 1 and 4.

In response, the court stated that it had “considered the 

totality of the circumstances of all the evidence” and noted 

that Garrett “tried to ruin [Rivera’s] life by lying about her 

involvement” with him. Supp. J.A. 6. The court acknowledged 

that it had discretion to run the sentences to Counts 2 and 3 

concurrently, and it recited the § 5G1.2 commentary factors. 

The court then reimposed an 81-month sentence, concluding that 

consecutive sentences for Counts 2 and 3 are appropriate based 

on “the nature and seriousness of the offense” and Garrett’s 

“substantial criminal history.” Supp. J.A. at 7.
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II

We review a criminal sentence for reasonableness under an 

abuse-of-discretion standard. Gall v. United States, 552 U.S. 

38, 51 (2007). Garrett does not challenge the district court’s 

calculation of the advisory guidelines range or its decision to 

impose concurrent 33-month sentences on Counts 1 and 4. 

Moreover, she does not challenge the fact that § 1028A requires 

that she receive a 24-month consecutive sentence for at least 

one of her identity theft convictions. Instead, she contends 

that the court’s imposition of consecutive 24-month sentences on 

her identity theft convictions, which raises her sentence from 

57 to 81 months, is unreasonable because the court failed to 

adequately explain a basis for its decision.

As we have noted, a district court must consider the 

factors set forth in the commentary to § 5G1.2 when deciding 

whether to impose consecutive or concurrent sentences for 

multiple convictions of § 1028A, and it must adequately explain 

its decision to impose consecutive sentences pursuant to 

§ 1028A. Assuming, without deciding, that Garrett is correct 

that the district court erred by not adequately explaining its 

decision to impose consecutive sentences for the identity theft 

convictions, we conclude that the error is harmless. See

Puckett v. United States, 129 S. Ct. 1423, 1432 (2009) 

(“procedural errors at sentencing . . . are routinely subject to 
7

harmlessness review”); United States v. Boulware, 604 F.3d 832, 

838 (4th Cir. 2010) (sentencing error is harmless if it “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” (internal 

punctuation altered)); United States v. Mehta, 594 F.3d 277, 283 

(4th Cir.), cert. denied, 131 S. Ct. 279 (2010) (sentencing 

“error is harmless if the resulting sentence was not longer than 

that to which [the defendant] would otherwise be subject” 

(internal punctuation altered)).3

The district court has twice concluded that 81 months is an 

appropriate sentence for Garrett. At resentencing, the district 

court noted that it had discretion to impose consecutive or 

concurrent sentences for Garrett’s § 1028A convictions, and it 

stated that it had considered the § 5G1.2 commentary factors and 

the totality of the circumstances of this case. It is readily 

 3 “Any error, defect, irregularity, or variance that does 

not affect substantial rights must be disregarded.” Fed. R. 

Crim. P. 52(a). The government did not argue harmlessness in 

its opening brief, but we directed the parties to file 

supplemental briefs addressing the issue. See generally Bank of 

Nova Scotia v. United States, 487 U.S. 250, 255 (1988) 

(explaining that Rule 52 is “in every pertinent respect, as 

binding as any statute duly enacted by Congress, and federal 

courts have no more discretion to disregard the Rule’s mandate 

than they do to disregard constitutional or statutory 

provisions”).
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apparent from both sentencing hearings that in fashioning 

Garrett’s sentence the court was particularly concerned about 

the seriousness of her crimes, her lengthy criminal record 

involving fraudulent conduct, and the likelihood that she would 

commit similar conduct in the future. The court’s concerns are 

amply supported by the record, and we believe that we can say 

“with fair assurance” that any error the court may have 

committed in explaining its basis for imposing consecutive 

sentences would not affect the sentence that would be imposed if 

we remanded this case. See Boulware, 604 F.3d at 840 (“the 

notion that having to explain its analysis further might have 

changed the district court’s mind . . . is simply unrealistic in 

the present case, and remand for resentencing would be a 

pointless waste of resources”). 

III

The district court had the authority to impose consecutive 

sentences on the § 1028A convictions and sentence Garrett to 81 

months, and that sentence does not appear to be unreasonable 

based on the record before us. Accordingly, we affirm the 

sentence.

AFFIRMED