United States v. Marvin Wilburn , 596 F. App'x 241 ( 2015 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-4588
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    MARVIN RAY WILBURN,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte.   Robert J. Conrad,
    Jr., District Judge. (3:11-cr-00337-RJC-11)
    Submitted:   February 25, 2015                  Decided:   March 9, 2015
    Before KING and    WYNN,    Circuit   Judges,    and   HAMILTON,   Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Denzil H. Forrester, DENZIL H. FORRESTER, Charlotte, North
    Carolina, for Appellant.    Amy Elizabeth Ray, Assistant United
    States Attorney, Asheville, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Marvin Ray Wilburn pled guilty, pursuant to a written plea
    agreement,     to        conspiracy         to       commit     money     laundering,            in
    violation    of     
    18 U.S.C. § 1956
    (h)       (2012).    Based       on    a    total
    offense level of 27, and a Criminal History category of VI,
    Wilburn’s advisory Sentencing Guidelines range was 130 to 162
    months’ imprisonment.              The district court imposed a 130-month
    sentence.    Wilburn noted a timely appeal.
    Wilburn’s counsel has filed a brief pursuant to Anders v.
    California,    
    386 U.S. 738
           (1967),      stating     that    there          are    no
    meritorious       grounds       for    appeal         but     questioning     whether            the
    district     court       adequately         considered          injuries     that      Wilburn
    sustained in a robbery some years prior to the offense.                                Wilburn
    has filed a pro se supplemental brief raising two additional
    issues:     (1) whether the factual basis was sufficient to support
    his conviction for conspiracy to commit money laundering; and
    (2) whether his conviction is invalid because he did not sign
    the stipulated factual basis.
    Counsel         questions             whether          Wilburn’s       sentence              is
    unreasonable       because       the       district       court     did    not    adequately
    consider the fact that Wilburn had been shot five times during a
    robbery that took place in 2000.                       This court reviews Wilburn’s
    sentence     for     reasonableness              “under     a    deferential          abuse-of-
    discretion standard.”            Gall v. United States, 
    552 U.S. 38
    , 41,
    2
    51 (2007).      This review entails appellate consideration of both
    the procedural and substantive reasonableness of the sentence.
    
    Id. at 51
    .      In determining procedural reasonableness, this court
    considers     whether   the    district      court   properly      calculated      the
    defendant’s      advisory     Guidelines      range,       gave   the    parties      an
    opportunity to argue for an appropriate sentence, considered the
    
    18 U.S.C. § 3553
    (a) (2012) factors, selected a sentence based on
    clearly erroneous facts, and sufficiently explained the selected
    sentence.      
    Id. at 49-51
    .
    If the sentence is free of “significant procedural error,”
    this court reviews it for substantive reasonableness, “tak[ing]
    into account the totality of the circumstances.”                         
    Id. at 51
    .
    Any sentence within or below a properly calculated Guidelines
    range is presumptively substantively reasonable.                    United States
    v. Louthian, 
    756 F.3d 295
    , 306 (4th Cir.), cert. denied, 
    135 S. Ct. 421
     (2014); United States v. Susi, 
    674 F.3d 278
    , 289-90 (4th
    Cir. 2012).
    We find that the sentence imposed by the district court was
    both procedurally and substantively reasonable.                         The district
    court properly calculated Wilburn’s sentencing range under the
    advisory Guidelines, considered the relevant § 3553(a) factors,
    and imposed a sentence within the applicable sentencing range.
    The   court    was   fully    aware   that    Wilburn       had   been    shot   in    a
    robbery   in    2000,   remarking     that     it    was    “shocked     that    after
    3
    surviving five bullets . . . you would go back into the money
    laundering business.”      Wilburn did not seek a downward departure
    based on this factor, nor was he entitled to one.                   See USSG §
    5H1.4 (providing that physical condition “may be relevant in
    determining whether a departure is warranted, if the condition .
    . . is present to an unusual degree and distinguishes the case
    from the typical cases covered by the guidelines.”).                 According
    to the presentence report, Wilburn is in good physical health
    and is not under the care of a physician nor prescribed any
    medication.     Because Wilburn cannot overcome the presumption of
    reasonableness accorded his within-Guidelines sentence, we find
    that his 130-month sentence is substantively reasonable.
    In   accordance   with      Anders,   we    have    reviewed   the   entire
    record,   as   well   as   the    issues   raised       in   Wilburn’s    pro   se
    supplemental brief, and have found no potentially meritorious
    grounds for appeal.        We therefore affirm Wilburn’s conviction
    and sentence.     This court requires that counsel inform Wilburn,
    in writing, of his right to petition the Supreme Court of the
    United States for further review.               If Wilburn requests that a
    petition be filed, but counsel believes that such a petition
    would be frivolous, counsel may move in this court for leave to
    withdraw from representation.         Counsel’s motion must state that
    a copy thereof was served on Wilburn. We dispense with oral
    argument because the facts and legal contentions are adequately
    4
    presented in the materials before this court and argument would
    not aid the decisional process.
    AFFIRMED
    5
    

Document Info

Docket Number: 14-4588

Citation Numbers: 596 F. App'x 241

Filed Date: 3/9/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023