US v. Marvin Wilburn

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:11-cr-00337-RJC-11 Copies to all parties and the district court/agency. [999541700].. [14-4588]

Appeal: 14-4588

Doc: 29

Filed: 03/09/2015

Pg: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4588

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARVIN RAY WILBURN,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., District Judge. (3:11-cr-00337-RJC-11)

Submitted:

February 25, 2015

Before KING and
Circuit Judge.

WYNN,

Circuit

Decided:

Judges,

and

March 9, 2015

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Denzil H. Forrester, DENZIL H. FORRESTER, Charlotte, North
Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-4588

Doc: 29

Filed: 03/09/2015

Pg: 2 of 5

PER CURIAM:
Marvin Ray Wilburn pled guilty, pursuant to a written plea
agreement,
violation

to
of

conspiracy
18

U.S.C.

to

§

commit

1956(h)

money

(2012).

laundering,

Based

on

a

in

total

offense level of 27, and a Criminal History category of VI,
Wilburn’s advisory Sentencing Guidelines range was 130 to 162
months’ imprisonment.
sentence.

The district court imposed a 130-month

Wilburn noted a timely appeal.

Wilburn’s counsel has filed a brief pursuant to Anders v.
California,

386

meritorious

grounds

district

court

U.S.

738
for

(1967),
appeal

adequately

stating

but

that

there

questioning

considered

injuries

are

whether

no
the

that

Wilburn

sustained in a robbery some years prior to the offense.

Wilburn

has filed a pro se supplemental brief raising two additional
issues:

(1) whether the factual basis was sufficient to support

his conviction for conspiracy to commit money laundering; and
(2) whether his conviction is invalid because he did not sign
the stipulated factual basis.
Counsel
unreasonable

questions
because

the

whether

Wilburn’s

district

court

did

sentence
not

is

adequately

consider the fact that Wilburn had been shot five times during a
robbery that took place in 2000.
sentence

for

reasonableness

discretion standard.”

This court reviews Wilburn’s

“under

a

deferential

abuse-of-

Gall v. United States, 552 U.S. 38, 41,
2

Appeal: 14-4588

Doc: 29

51 (2007).

Filed: 03/09/2015

Pg: 3 of 5

This review entails appellate consideration of both

the procedural and substantive reasonableness of the sentence.
Id. at 51.
considers

In determining procedural reasonableness, this court
whether

defendant’s

the

advisory

district

court

Guidelines

properly

range,

gave

calculated
the

the

parties

an

opportunity to argue for an appropriate sentence, considered the
18 U.S.C. § 3553(a) (2012) factors, selected a sentence based on
clearly erroneous facts, and sufficiently explained the selected
sentence.

Id. at 49-51.

If the sentence is free of “significant procedural error,”
this court reviews it for substantive reasonableness, “tak[ing]
into account the totality of the circumstances.”

Id. at 51.

Any sentence within or below a properly calculated Guidelines
range is presumptively substantively reasonable.

United States

v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied, 135 S.
Ct. 421 (2014); United States v. Susi, 674 F.3d 278, 289-90 (4th
Cir. 2012).
We find that the sentence imposed by the district court was
both procedurally and substantively reasonable.

The district

court properly calculated Wilburn’s sentencing range under the
advisory Guidelines, considered the relevant § 3553(a) factors,
and imposed a sentence within the applicable sentencing range.
The

court

robbery

in

was

fully

2000,

aware

that

remarking

that
3

Wilburn
it

was

had

been

shot

in

a

“shocked

that

after

Appeal: 14-4588

Doc: 29

Filed: 03/09/2015

Pg: 4 of 5

surviving five bullets . . . you would go back into the money
laundering business.”

Wilburn did not seek a downward departure

based on this factor, nor was he entitled to one.

See USSG §

5H1.4 (providing that physical condition “may be relevant in
determining whether a departure is warranted, if the condition .
. . is present to an unusual degree and distinguishes the case
from the typical cases covered by the guidelines.”).

According

to the presentence report, Wilburn is in good physical health
and is not under the care of a physician nor prescribed any
medication.

Because Wilburn cannot overcome the presumption of

reasonableness accorded his within-Guidelines sentence, we find
that his 130-month sentence is substantively reasonable.
In
record,

accordance
as

well

with

as

the

Anders,
issues

we

have

raised

reviewed
in

the

Wilburn’s

entire
pro

se

supplemental brief, and have found no potentially meritorious
grounds for appeal.
and sentence.

We therefore affirm Wilburn’s conviction

This court requires that counsel inform Wilburn,

in writing, of his right to petition the Supreme Court of the
United States for further review.

If Wilburn requests that a

petition be filed, but counsel believes that such a petition
would be frivolous, counsel may move in this court for leave to
withdraw from representation.

Counsel’s motion must state that

a copy thereof was served on Wilburn. We dispense with oral
argument because the facts and legal contentions are adequately
4

Appeal: 14-4588

Doc: 29

Filed: 03/09/2015

Pg: 5 of 5

presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED

5