US v. Dawnice Wilkin, No. 11-4021 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4021 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAWNICE IQUAN WILKINS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:10-cr-00129-F-1) Submitted: July 13, 2011 Before KING and Circuit Judge. DAVIS, Decided: Circuit Judges, and July 15, 2011 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Terry F. Rose, ATTORNEY AND COUNSELOR AT LAW, Smithfield, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. May-Parker, David A. Bragdon, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dawnice Iquan Wilkins pled guilty to conspiracy to commit mail fraud and wire fraud, 18 U.S.C. §§ 371, 1341, and 1344. The district court calculated Wilkins Guidelines range under the U.S. Sentencing imprisonment, Guidelines departed upward (USSG) at pursuant 27 to to 33 USSG months §§ 2B1.1, comment. (n.19(A)), and 4A1.3(a)(1), p.s., and sentenced Wilkins to sixty months imprisonment. On appeal, Wilkins challenges the factual basis supporting her guilty plea and the departure sentence imposed by the district court. Because Wilkins did not move in We affirm. the district court to withdraw her guilty plea, the Rule 11 hearing is reviewed for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Rule 11(b)(3) provides that, [b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea. Fed. R. Crim. P. 11(b)(3). As we have explained, [t]he rule is intended to ensure that the court make clear exactly what a defendant admits to, and whether those admissions alleged crime. are factually sufficient to constitute the United States v. Mastrapa, 509 F.3d 652, 659 60 (4th Cir. 2007) (citation and internal quotation marks omitted). In making a Rule 11(b)(3) determination, the district court has broad discretion and need not conduct a trial; moreover, the district court is not constrained - 2 - to rely only on the plea colloquy, but may conclude that a factual anything that appears on the record. basis exists from United States v. Ketchum, 550 F.3d 363, 366 67 (4th Cir. 2008); see also United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991) (noting that Rule 11 does not require the district court to establish through its colloquy that a factual basis exists for the guilty plea). The district court need only be subjectively satisfied that there is a sufficient factual basis for a conclusion that defendant committed all of the elements of the offense. the United States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997). We have carefully reviewed the record and conclude there was ample evidentiary support for the district court s factual basis determination. First and foremost, in her plea agreement, Wilkins stipulated to entering into an agreement with others to knowingly use the mail for the purpose of executing a scheme to defraud and to knowingly execute a scheme to defraud a financial institution and to obtain moneys under the custody and control of fraudulent 45). a financial pretenses, institution by representations, means and of false promises. and (J.A. At no point in the proceedings did Wilkins challenge this stipulation. Moreover, Wilkins presentence report (PSR) detailed her knowledge of, and participation in, the charged conspiracy, and Wilkins did not object to that portion of the PSR. Further, Wilkins testimony at the Rule 11 hearing squarely - 3 - belies her contention that there was insufficient evidentiary support for the district court s finding that she participated in the charged conspiracy. court properly guilty plea. When determined Accordingly, we hold the district there was a factual basis for the DeFusco, 949 F.2d at 120. determining a sentence, the district court must calculate the appropriate advisory Guidelines range and consider it in conjunction § 3553(a). Gall with factors United v. the States, set 552 forth U.S. at 38, 18 51 U.S.C. (2007). Appellate review of a sentence, whether inside, just outside, or significantly outside the Guidelines range, is for abuse of discretion. A range Id. at 41. district under criminal court USSG § history seriousness of may depart 4A1.3(a)(1), category the upward p.s., substantially defendant s from when the the Guidelines defendant s under-represents criminal history or likelihood that the defendant will commit other crimes. the the USSG § 4A1.3(a)(1), p.s.; United States v. Whorley, 550 F.3d 326, 341 (4th Cir. 2008) (noting that an under-representative criminal history category is an encouraged basis for departure). In determining whether a departure sentence is appropriate in such circumstances, the Guidelines state that a district court may consider prior calculation, sentences prior not sentences used of in the criminal substantially - 4 - more history than one year for independent crimes committed at different times, prior similar misconduct resolved by civil or administrative adjudication, charges pending at the time of the offense, or prior similar conduct that did not result in a conviction. USSG § 4A1.3(a)(2), p.s. The Guidelines also permit an upward departure where the fraud offense level substantially understates the seriousness of the offense. factors Id. consider to offense § 2B1.1, in caused or comment. this risked (n.19(A)). determination substantial is One of the whether the non-monetary harm, including a substantial invasion of privacy interest. Id. § 2B1.1, comment. (n.19(A)(ii)). In this conclusion case, that the record Wilkins supports criminal the history district category court s failed to reflect adequately the seriousness of her criminal history and the likelihood of her recidivism. Wilkins had over ten unscored convictions not included in her criminal history category, a lengthy criminal history replete with recidivism, and numerous convictions involving fraud. Moreover, the record supports the conclusion offense that Wilkins seriousness of the offense. bank accounts and used that the over potential understated the Wilkins created over 250 fraudulent 115 legitimate numbers to set up those accounts. court level financial - 5 - social security We agree with the district harm, embarrassment, and inconvenience (J.A. 73). to the affected individuals is immeasurable. Thus, the district court did not err when it decided to depart upward from Wilkins advisory Guidelines range. When reviewing the reasonableness of an upward departure sentence, we must give due deference to the district court s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. Gall, 552 U.S. at 51. Even if we would have reached a different sentencing result on our own, this fact alone is district court. insufficient to justify reversal of the United States v. Pauley, 511 F.3d 468, 474 (4th Cir. 2007) (quoting Gall, 552 U.S. at 51). Under 18 U.S.C. § 3553(a), the district court should consider the nature and circumstances of the offense and the history and characteristics of the defendant. The district court should impose a sentence that reflects the seriousness of the offense, and the need to promote respect for the law, to provide just punishment, to afford adequate deterrence, to protect the public from further crimes, and to provide the defendant with adequate rehabilitation or medical treatment. We have reviewed the record and conclude that, in imposing the upward departure sentence, the district court provided an adequate individualized sentencing conduct. factors in assessment relation to of the Wilkins relevant and her § 3553(a) criminal The district court took into consideration Wilkins - 6 - prior criminal conduct, which demonstrated a lack of respect for the law, the serious nature of her offense, and the need for the sentence to deter Wilkins and protect the public. Moreover, in departing upward three criminal history categories, the district court followed the correct incremental approach, which requires the district court to refer first to the next higher category and explain why it fails to reflect the seriousness defendant s record before considering a higher category. States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992). of the United Finally, considering the potential harm in play, the district court s modest two-level increase under USSG § 2B1.1, affirm Wilkins comment. (n.19(A)), was reasonable. For these sentence. legal before reasons, conviction and We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED - 7 -

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