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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4218
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
JING JING CHEN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00085-CCE-6)
Submitted:
September 28, 2012
Decided:
December 13, 2012
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Todd Allen Smith, LAW OFFICE OF TODD ALLEN SMITH, Graham, North
Carolina, for Appellant. Frank Joseph Chut, Jr., Assistant
United
States
Attorney,
Greensboro,
North
Carolina,
for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jing
Jing
Chen
appeals
from
her
convictions
and
forty-four month sentence imposed pursuant to her guilty plea to
conspiracy to commit access device fraud and aggravated identity
theft.
On appeal, her attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal but questioning whether the
district court erred in imposing sentence.
supplemental
grounds.
brief,
her
sentence
on
numerous
After careful consideration of the record, we affirm.
Chen
miscalculated
object
to
raises
her
her
district
court
Cir.
several
Guidelines
presentence
determinations.
(4th
challenging
Chen filed a pro se
was
claims
that
range.
report
entitled
the
district
However,
(PSR).
to
Chen
court
did
not
Therefore,
the
accept
its
factual
See United States v. Terry, 916 F.2d 157, 162
1990)
(in
absence
of
an
affirmative
showing
that
information contained in PSR is unreliable, a district court is
free to adopt the PSRs factual findings).
Moreover, Chens
claims of error are not supported by the record.
Next,
Chen
claims
that
she
was
entitled
to
the
application of the safety valve in 18 U.S.C. 3553(f) (2006),
presumably
to
reduce
her
statutory mandatory minimum.
identity
theft
sentence
below
the
However, the safety valve in this
subsection applies only to controlled substance offenses and,
thus, is inapplicable to Chens sentence.
Finally, Chen asserts that the U.S. Attorneys Office
is improperly attempting to collect her restitution amount in
full
while
district
she
courts
is
still
judgment.
in
prison
in
However,
contradiction
any
challenge
of
the
to
the
execution of a sentence, rather than the sentence itself, must
be brought pursuant to 28 U.S.C.A. 2241 (West 2006 & Supp.
2012) in the district of confinement.
See United States v.
Miller, 871 F.2d 488, 489-90 (4th Cir. 1989).
As such, this
claim is not cognizable on direct appeal.
In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal.
We
conclude that Chens guilty plea was knowing and voluntary and
her below-Guidelines sentence was reasonable.
Accordingly, we
grant Chens motion to file an informal appendix and affirm her
convictions
and
sentence.
This
court
requires
that
counsel
inform Chen in writing of her right to petition the Supreme
Court of the United States for further review.
that
petition
be
filed,
but
counsel
If Chen requests
believes
that
such
petition would be frivolous, then counsel may move this court
for leave to withdraw from representation.
Counsel's motion
must state that a copy thereof was served on Chen.
We dispense
with oral argument because the facts and legal contentions are
3
adequately
presented
in
the
materials
before
the
court
and
argument would not aid the decisional process.
AFFIRMED
