UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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