UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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 

, 104 F.3d 649, 652 (4th Cir. 1997).
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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

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). 

, 949 F.2d at 120. 

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.

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.; 

at 41.

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.

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 

§ 2B1.1, comment. (n.19(A)(ii)).
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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

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’ 

, 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.
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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

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.

, 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.

AFFIRMED