UNPUBLISHED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Affirmed by unpublished per curiam opinion.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. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Jill Westmoreland Rose, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Abby Wilmoth appeals the downward variance 120-month
sentence imposed upon her guilty plea to one count of conspiracy
to distribute, possess with intent to distribute, and
manufacture methamphetamine, in violation of 21 U.S.C.
§§ 841(b)(1)(A), 846 (2012); one count of possession and
distribution of pseudoephedrine, in violation of 21 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. We affirm.
Before accepting a guilty plea, a district court must
ensure that the plea is knowing, voluntary, and supported by an
independent factual basis. Fed. 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. See United States v.
Davila, 133 S. Ct. 2139, 2147 (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 not have entered the plea” (internal
quotation marks omitted)). Moreover, the district court
confirmed at sentencing that Wilmoth’s plea was 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). We first review for procedural error, such as
improper calculation of the Sentencing Guidelines range.
Gall v. United States, 552 U.S. 38, 51 (2007). “Upon a finding
of a procedural error, the error shall be subject to
harmlessness review.” Martinovich, 810 F.3d at 242. 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 statutory
mandatory minimum sentence of 120 months’ imprisonment.
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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 calculated Guidelines range is presumptively
reasonable. 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.” United States v. Louthian, 756 F.3d
295, 306 (4th Cir. 2014). 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. We therefore affirm the judgment of the
district court. This court requires that counsel inform
Wilmoth, in writing, of the right to petition the Supreme Court
of the United States for further review. If Wilmoth 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 Wilmoth. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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