US v. Michael Lewis Wimberly

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:12-cr-00738-RBH-1 Copies to all parties and the district court/agency. [999530058].. [14-4569]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4569

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL LEWIS WIMBERLY,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:12-cr-00738-RBH-1)

Submitted:

February 12, 2015

Decided:

February 18, 2015

Before MOTZ, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. John C. Potterfield,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael Lewis Wimberly pled guilty to conspiracy to
commit

wire

(2012).

fraud,

in

violation

of

18

U.S.C.

He received a sixty-month sentence.

§§

371,

1343

On appeal, counsel

has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting there are no meritorious grounds for appeal,
but questioning whether the district court complied with Fed. R.
Crim. P. 11 when it accepted Wimberly’s guilty plea and whether
the sentence was reasonable.
do

so,

Wimberly

has

not

Although informed of his right to

filed

a

supplemental

Government declined to file a response.

brief.

The

We affirm.

Because Wimberly did not move to withdraw his plea, we
review his Rule 11 hearing for plain error.

United States v.

Martinez, 277 F.3d 517, 525 (4th Cir. 2002).

Here, we find no

error, as the district court substantially complied with Rule 11
when

accepting

contrary,

we

Wimberly’s
therefore

plea.

find

Given

that

no

indication

the

plea

was

to

the

knowing

and

voluntary, and, consequently, final and binding.

See United

States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).
Next,
reasonable,

counsel

questions

considering

that

a

whether

the

sentence

thirty-month

was

portion

of

Wimberly’s sentence was imposed consecutive to an undischarged
state

sentence.

applying

an

abuse

We
of

review

a

discretion
2

sentence

for

standard.

reasonableness,
Gall

v.

United

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States, 552 U.S. 38, 46 (2007).

The court first reviews for

significant procedural error, and if the sentence is free from
such error, it then considers substantive reasonableness.
at 51.

Id.

Procedural error includes improperly calculating the

Guidelines range, treating the Guidelines range as mandatory,
failing to consider the 18 U.S.C. § 3553(a) (2012) factors, and
failing to adequately explain the selected sentence.

Id.

To

adequately explain the sentence, the district court must make an
“individualized assessment” by applying the relevant § 3553(a)
factors to the case’s specific circumstances.
Carter, 564 F.3d 325, 328 (4th Cir. 2009).

United States v.
The individualized

assessment need not be elaborate or lengthy, but it must be
adequate

to

Substantive

allow

meaningful

reasonableness

appellate

is

review.

determined

by

Id.

at

considering

330.
the

totality of the circumstances, and if the sentence is within the
properly-calculated

Sentencing

Guidelines

presumption of reasonableness.

range,

we

apply

a

United States v. Strieper, 666

F.3d 288, 295 (4th Cir. 2012).

We conclude that Wimberly has

not rebutted the presumption of reasonableness.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Wimberly’s conviction and sentence.

This

court requires that counsel inform Wimberly, in writing, of the
right to petition the Supreme Court of the United States for
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further review.

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If Wimberly 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 Wimberly.

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

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