US v. Abby Wilmoth

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cr-00053-RLV-DCK-9 Copies to all parties and the district court/agency. [999918780].. [15-4143]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4143

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ABBY WILMOTH, a/k/a Abby Jones,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge. (5:13-cr-00053-RLV-DCK-9)

Submitted:

August 23, 2016

Decided:

August 29, 2016

Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Lisa S. Costner, LISA S.
Carolina, for Appellant.
Attorney, Amy E. Ray,
Asheville, North Carolina,

COSTNER, P.A., Winston-Salem, North
Jill Westmoreland Rose, United States
Assistant United States Attorney,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Abby

Wilmoth

appeals

the

downward

variance

120-month

sentence imposed upon her guilty plea to one count of conspiracy
to

distribute,

manufacture

possess

with

methamphetamine,

intent
in

§§ 841(b)(1)(A),

846

distribution

pseudoephedrine,

of

(2012);

to

distribute,

violation

one

count
in

of

of

21

U.S.C.

possession

violation

of

21

and

and

U.S.C.

§§ 802(34)(K), 841(c)(2) (2012); three counts of possession of
materials to make methamphetamine, in violation of 21 U.S.C.
§ 843(a)(6), (d)(2) (2012); and three counts of maintaining a
premises for manufacturing and distributing methamphetamine, in
violation of 21 U.S.C. § 856(a)(1) (2012).

On appeal, Wilmoth’s

counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), certifying that there were no meritorious grounds
for appeal but questioning the validity of Wilmoth’s guilty plea
and the reasonableness of her sentence.

Wilmoth did not file a

supplemental pro se brief despite being advised of her right to
do

so.

We

directed

supplemental

briefing

on

whether

the

district court properly applied a sentencing enhancement under
U.S. Sentencing Guidelines Manual § 2D1.1(b)(13)(C)(ii) (2014),
for creating a substantial risk of harm.
Before

accepting

a

guilty

plea,

We affirm.
a

district

court

must

ensure that the plea is knowing, voluntary, and supported by an
independent

factual

basis.

Fed.
2

R.

Crim.

P.

11(b);

United

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States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).

Although

there were minor omissions in the Rule 11 colloquy conducted by
the magistrate judge, we conclude that these minor omissions did
not affect Wilmoth’s substantial rights.
Davila,

133

S.

Ct.

2139,

2147

See United States v.

(2013)

(stating

that,

to

demonstrate effect on substantial rights in Rule 11 context,
defendant “must show a reasonable probability that, but for the
error,

[s]he

would

quotation

marks

confirmed

at

not

have

entered

omitted)).

sentencing

the

Moreover,

that

plea”

the

Wilmoth’s

(internal

district

plea

was

court

knowing,

voluntary, and supported by a sufficient factual basis.
We review the reasonableness of a sentence for abuse of
discretion.

United States v. Martinovich, 810 F.3d 232, 242

(4th Cir. 2016).
improper

We first review for procedural error, such as

calculation

of

the

Sentencing

Guidelines

Gall v. United States, 552 U.S. 38, 51 (2007).
of

a

procedural

harmlessness

error,

review.”

the

error

Martinovich,

shall

810

F.3d

range.

“Upon a finding
be
at

subject
242.

to

Here,

although the district court failed to explain its consideration
of the relevant factors in applying a sentencing enhancement for
creating

a

substantial

risk

of

harm,

see

USSG

§ 2D1.1

cmt.

n.18(B)(i), we conclude that the procedural error is harmless in
light

of

the

court’s

imposition

of

the

applicable

mandatory minimum sentence of 120 months’ imprisonment.
3

statutory

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Next, we “consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard . . . ,
tak[ing]

into

account

the

totality

of

the

circumstances,

including the extent of any variance from the Guidelines range.”
Gall, 552 U.S. at 51.

“Any sentence that is within or below a

properly

Guidelines

calculated

reasonable.

range

is

presumptively

Such a presumption can only be rebutted by showing

that the sentence is unreasonable when measured against the 18
U.S.C. § 3553(a) factors.”
295, 306 (4th Cir. 2014).

United States v. Louthian, 756 F.3d
Here, we conclude that Wilmoth cannot

overcome the presumption of substantive reasonableness accorded
her downward variant sentence.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record in this case and found no meritorious issues for appeal,
other than the risk enhancement issue, which we conclude fails
harmless error review.
district

court.

We therefore affirm the judgment of the

This

court

requires

that

counsel

inform

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

a

petition

be

filed,

but

counsel

If Wilmoth requests
believes

that

such

a

petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation.
must

state

dispense

that

with

a
oral

copy

thereof

argument

was

because
4

served
the

Counsel’s motion
on

Wilmoth.

facts

and

We
legal

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contentions

are

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adequately

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presented

in

the

materials

before

this court and argument would not aid the decisional process.
AFFIRMED

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