United States v. Michael Wimberly

Court Case Details
Court Case Opinion




No. 14-4569


Plaintiff – Appellee,



Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.

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Affirmed by unpublished per curiam opinion.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

Unpublished opinions are not binding precedent in this circuit.


Michael Lewis Wimberly pled guilty to conspiracy to

commit wire fraud, in violation of 18 U.S.C. §§ 371, 1343

(2012). He received a sixty-month sentence. 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. Although informed of his right to

do so, Wimberly has not filed a supplemental brief. The

Government declined to file a response. 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 Wimberly’s plea. Given no indication to the

contrary, we therefore find that the plea was knowing and

voluntary, and, consequently, final and binding. See United

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

Next, counsel questions whether the sentence was


considering that a thirty-month portion of

Wimberly’s sentence was imposed consecutive to an undischarged

state sentence. We review a sentence for reasonableness,

applying an abuse of discretion standard. Gall v. United


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. Id.

at 51. 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. United States v.

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

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

adequate to allow meaningful appellate review. Id. at 330.

Substantive reasonableness is determined by considering the

totality of the circumstances, and if the sentence is within the

properly-calculated Sentencing Guidelines range, we apply a

presumption of reasonableness. 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


further review. 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.



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