UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4021
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAWNICE IQUAN WILKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:10-cr-00129-F-1)
Submitted: July 13, 2011 Decided: July 15, 2011
Before KING and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Terry F. Rose, ATTORNEY AND COUNSELOR AT LAW, Smithfield, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, David A. Bragdon, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dawnice Iquan Wilkins pled guilty to conspiracy to commit
mail fraud and wire fraud, 18 U.S.C. §§ 371, 1341, and 1344.
The district court calculated Wilkins’ Guidelines range under
the U.S. Sentencing Guidelines (USSG) at 27 to 33 months’
imprisonment, departed upward pursuant to USSG §§ 2B1.1,
comment. (n.19(A)), and 4A1.3(a)(1), p.s., and sentenced Wilkins
to sixty months’ imprisonment. On appeal, Wilkins challenges
the factual basis supporting her guilty plea and the departure
sentence imposed by the district court. We affirm.
Because Wilkins did not move in the district court to
withdraw her guilty plea, the Rule 11 hearing is reviewed for
plain error. United States v. Martinez, 277 F.3d 517, 525 (4th
Cir. 2002). Rule 11(b)(3) provides that, “[b]efore entering
judgment on a guilty plea, the court must determine that there
is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3).
As we have explained, “[t]he rule is intended to ensure that the
court make clear exactly what a defendant admits to, and whether
those admissions are factually sufficient to constitute the
alleged crime.” United States v. Mastrapa, 509 F.3d 652, 659–60
(4th Cir. 2007) (citation and internal quotation marks omitted).
In making a Rule 11(b)(3) determination, the district court has
broad discretion and need not conduct a trial; moreover, the
district court is not constrained to rely only on the plea
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colloquy, but may conclude that a factual basis exists from
anything that appears on the record. United States v. Ketchum,
550 F.3d 363, 366–67 (4th Cir. 2008); see also United States v.
DeFusco, 949 F.2d 114, 120 (4th Cir. 1991) (noting that Rule 11
does not require the district court to establish through its
colloquy that a factual basis exists for the guilty plea). The
district court “need only be subjectively satisfied that there
is a sufficient factual basis for a conclusion that the
defendant committed all of the elements of the offense.” United
States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997).
We have carefully reviewed the record and conclude there
was ample evidentiary support for the district court’s factual
basis determination. First and foremost, in her plea agreement,
Wilkins stipulated to entering into an agreement with others to
“knowingly use the mail for the purpose of executing a scheme to
defraud” and to “knowingly execute a scheme to defraud a
financial institution and to obtain moneys under the custody and
control of a financial institution by means of false and
fraudulent pretenses, representations, and promises.” (J.A.
45). At no point in the proceedings did Wilkins challenge this
stipulation. Moreover, Wilkins’ presentence report (PSR)
detailed her knowledge of, and participation in, the charged
conspiracy, and Wilkins did not object to that portion of the
PSR. Further, Wilkins testimony at the Rule 11 hearing squarely
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belies her contention that there was insufficient evidentiary
support for the district court’s finding that she participated
in the charged conspiracy. Accordingly, we hold the district
court properly determined there was a factual basis for the
guilty plea. DeFusco, 949 F.2d at 120.
When determining a sentence, the district court must
calculate the appropriate advisory Guidelines range and consider
it in conjunction with the factors set forth at 18 U.S.C.
§ 3553(a). Gall v. United States, 552 U.S. 38, 51 (2007).
Appellate review of a sentence, “whether inside, just outside,
or significantly outside the Guidelines range,” is for abuse of
discretion. Id. at 41.
A district court may depart upward from the Guidelines
range under USSG § 4A1.3(a)(1), p.s., when “the defendant’s
criminal history category substantially under-represents the
seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes.” USSG
§ 4A1.3(a)(1), p.s.; United States v. Whorley, 550 F.3d 326, 341
(4th Cir. 2008) (noting that an under-representative criminal
history category is an encouraged basis for departure). In
determining whether a departure sentence is appropriate in such
circumstances, the Guidelines state that a district court may
consider prior sentences not used in the criminal history
calculation, prior sentences of “substantially more than one
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year” for independent crimes committed at different times, prior
similar misconduct resolved by civil or administrative
adjudication, charges pending at the time of the offense, or
prior similar conduct that did not result in a conviction. USSG
§ 4A1.3(a)(2), p.s.
The Guidelines also permit an upward departure where the
fraud offense level substantially understates the seriousness of
the offense. Id. § 2B1.1, comment. (n.19(A)). One of the
factors to consider in this determination is whether the
“offense caused or risked substantial non-monetary harm,”
including “a substantial invasion of privacy interest.” Id.
§ 2B1.1, comment. (n.19(A)(ii)).
In this case, the record supports the district court’s
conclusion that Wilkins’ criminal history category failed to
reflect adequately the seriousness of her criminal history and
the likelihood of her recidivism. Wilkins had over ten unscored
convictions not included in her criminal history category, a
lengthy criminal history replete with recidivism, and numerous
convictions involving fraud. Moreover, the record supports the
conclusion that Wilkins’ offense level understated the
seriousness of the offense. Wilkins created over 250 fraudulent
bank accounts and used over 115 legitimate social security
numbers to set up those accounts. We agree with the district
court that the potential financial harm, embarrassment, and
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inconvenience to the affected individuals is “immeasurable.”
(J.A. 73). Thus, the district court did not err when it decided
to depart upward from Wilkins’ advisory Guidelines range.
When reviewing the reasonableness of an upward departure
sentence, we “must give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.” Gall, 552 U.S. at 51. “Even if we
would have reached a different sentencing result on our own,
this fact alone is ‘insufficient to justify reversal of the
district court.’” United States v. Pauley, 511 F.3d 468, 474
(4th Cir. 2007) (quoting Gall, 552 U.S. at 51). Under 18 U.S.C.
§ 3553(a), the district court should consider the nature and
circumstances of the offense and the history and characteristics
of the defendant. The district court should impose a sentence
that reflects the seriousness of the offense, and the need to
promote respect for the law, to provide just punishment, to
afford adequate deterrence, to protect the public from further
crimes, and to provide the defendant with adequate
rehabilitation or medical treatment.
We have reviewed the record and conclude that, in imposing
the upward departure sentence, the district court provided an
adequate individualized assessment of the relevant § 3553(a)
sentencing factors in relation to Wilkins and her criminal
conduct. The district court took into consideration Wilkins’
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prior criminal conduct, which demonstrated a lack of respect for
the law, the serious nature of her offense, and the need for the
sentence to deter Wilkins and protect the public. Moreover, in
departing upward three criminal history categories, the district
court followed the correct incremental approach, which requires
the district court to refer first to the next higher category
and explain why it fails to reflect the seriousness of the
defendant’s record before considering a higher category. United
States v. Rusher, 966 F.2d 868, 884 (4th Cir. 1992). Finally,
considering the potential harm in play, the district court’s
modest two-level increase under USSG § 2B1.1, comment.
(n.19(A)), was reasonable.
For these reasons, we affirm Wilkins’ conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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