United States v. Francis Marimo

Court Case Details
Court Case Opinion




No. 14-4014


Plaintiff – Appellee,



Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:13-cr-00106-FL-1)

Submitted: September 23, 2014

Decided: September 25, 2014

Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
North Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina; Alan James
for Appellee.

Unpublished opinions are not binding precedent in this circuit.


Francis Marimo pleaded guilty pursuant to a written

plea agreement to two counts of odometer tampering, in violation

of 49 U.S.C. §§ 32703(2), 32709(b) (2012). He received an

eighteen-month sentence. On appeal, counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting

that there are no meritorious grounds for appeal, but

questioning whether Marimo’s guilty plea was knowing and

voluntary, the Fed. R. Crim. P. 11 hearing was adequate, the

sentence imposed by the district court was reasonable, and

ineffective assistance of counsel conclusively appears on the

record. Marimo has not filed a pro se supplemental brief. The

Government declined to file a response. We affirm.

Because Marimo 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 fully complied with Rule 11 when

accepting Marimo’s plea. Given no indication to the contrary,

we therefore find that Marimo’s plea was knowing and voluntary,

and, consequently, final and binding. See United States v.

Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).

Next we review Marimo’s sentence for reasonableness

using an abuse of discretion standard. Gall v. United States,

552 U.S. 38, 51 (2007). The court first reviews for significant


procedural error, and if the sentence is free from such error,

we then consider substantive reasonableness. Id. at 51.

Procedural error includes improperly calculating the Sentencing

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. United States v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009). Substantive

reasonableness is determined by considering the totality of the

circumstances, and if the sentence is within the

properly-calculated Guidelines range, this court applies a

presumption of reasonableness. United States v. Strieper, 666

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

The district court heard argument from the parties,

afforded Marimo an opportunity to allocute, and imposed a

sentence of eighteen months—at the bottom of the Sentencing

Guidelines range. The court expressly considered the § 3553(a)

factors and rendered an individualized assessment in this case.

The court stated that the sentence was sufficiently severe, but

not greater than necessary, to punish the offense, to promote

respect for the law, and discourage this type of conduct. We

conclude that Marimo has not rebutted the presumption of


reasonableness and that the court did not abuse its discretion

in imposing the chosen sentence.

Although counsel raised whether Marimo received

ineffective assistance of counsel, he stated that he could find

no evidence of ineffective assistance. Claims of ineffective

assistance of counsel generally are not cognizable on direct

appeal. United States v. King, 119 F.3d 290, 295 (4th Cir.

1997). However, ineffective assistance claims are cognizable on

direct appeal if the record conclusively establishes ineffective

assistance. Massaro v. United States, 538 U.S. 1690, 1693-94

(2003); United States v. Richardson, 195 F.3d 192, 198 (4th Cir.

1999). The record does not conclusively establish ineffective

assistance of counsel.

In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Marimo’s convictions and sentence. This

court requires that counsel inform Marimo, in writing, of the

right to petition the Supreme Court of the United States for

further review. If Marimo 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 Marimo. 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.



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