                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   August 13, 2009
                    UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff- Appellee,                      No. 08-1402
          v.                                             (D. Colorado)
 CHARLES WIMBERLY,                            (D.C. No. 1:07-CR-00473-MSK-2)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.



I. Introduction

      Defendant-Appellant Charles Wimberly pleaded guilty to theft of public

money and aiding and abetting, in violation of 18 U.S.C. §§ 641 and 2. He

received a within-guidelines sentence of 30 months’ imprisonment followed by

three years of supervised release. On appeal, Wimberly contends that the district

court erred in failing to grant him a downward departure or a downward variance

and that his sentence is substantively unreasonable. Under 28 U.S.C. § 1291 and


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
18 U.S.C. § 3742(a), we have jurisdiction to review only the failure to grant a

downward variance and the reasonableness of the sentence, and we affirm the

district court because the sentence it imposed is not unreasonable.

II. Background

      Wimberly and his wife, Jelissa, moved to Colorado from Mississippi

shortly before Hurricane Katrina struck the gulf region. Even though they were

not Mississippi residents during the disaster, Wimberly encouraged and assisted

his wife in applying for disaster relief. The application contained false statements

claiming the family suffered property damage and loss of employment due to the

hurricane. As a result of this application, the family received emergency

assistance from the federal government and private charities totaling over

$41,000.

      In February of 2007, the Wimberlys faced state felony charges in an

unrelated case. In April of that year, the State of Colorado filed a Petition for

Dependency and Neglect regarding the couple’s children.

      Beginning in May of 2007, Wimberly voluntarily provided written

statements to federal authorities disclosing the fraudulent Katrina scheme, and in

one letter he asserted he was the mastermind of the scheme. Unbeknownst to

Wimberly, the government had already received an anonymous tip regarding the

Katrina fraud over a year earlier.




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      The Wimberlys were later indicted on ten felony counts related to the

Katrina fraud. Charles Wimberly pleaded guilty to theft of public money and

aiding and abetting, and the government dismissed the remaining charges against

him. At the change of plea hearing, Wimberly informed the district court through

his counsel that the reason he had written the letter claiming to be the mastermind

of the scheme was to try to ensure his wife did not lose custody of their children.

      Before sentencing, a pre-sentence investigation report (PSR) was prepared.

The PSR calculated Wimberly’s offense level to be twelve, but subtracted two

levels for acceptance of responsibility under U.S.S.G. § 3E1.1(a), resulting in a

total offense level of ten. Wimberly had a criminal history category of VI, giving

him a guidelines sentence range of 24-30 months’ imprisonment. Appended to

the PSR was a psychosexual mental health evaluation prepared in connection with

the state court child custody proceedings. Wimberly requested a downward

departure on the grounds that his criminal history overstated the seriousness of his

conduct and that he voluntarily disclosed his wrongdoing. He also requested a

departure on the grounds that the criminal history category overstated the

seriousness of his conduct. Finally, he requested a downward variance on the

grounds that he was crime-free between 1996 and 2006 and because, even though

he violated the terms of his release prior to sentencing and had his bond revoked,

he had complied with the terms of his release for the majority of the period prior

to sentencing.

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      The district court adopted the PSR and declined to grant a departure or

variance. It imposed a sentence of 30 months, which was the top end of the

advisory guidelines range. In explaining its reasons for declining to grant a

downward departure, the district court read a passage from the mental health

evaluation stating, among other things, Wimberly was “a high risk for violent

offense recidivism and criminal behavior.” The district court also referred to the

evaluation when it declined to grant a variance and imposed sentence, and stated

the evaluation was consistent with the court’s own observations of Wimberly’s

conduct. This appeal followed.

III. Discussion

      In his opening brief, Wimberly asserts the district court abused its

discretion in refusing to grant a discretionary downward departure or a downward

variance, and also argues his sentence is substantively unreasonable. The district

court’s decision to deny a variance is reviewed through the application of the test

for substantive reasonableness. See United States v. Sells, 541 F.3d 1227, 1237-

38 (10th Cir. 2008). As the government correctly argues, this court lacks

jurisdiction to consider whether the district court erred in refusing to grant a

discretionary downward departure. United States v. Chavez-Diaz, 444 F.3d 1223,

1229 (10th Cir. 2006). This court may consider, however, the asserted grounds

for departure when reviewing the sentence for reasonableness. Id. In his reply




                                         -4-
brief, Wimberly reframes his argument regarding the downward departure as part

of his challenge to the substantive reasonableness of his sentence.

      This court reviews sentences for substantive reasonableness under an

abuse-of-discretion standard. United States v. Sells, 541 F.3d 1227, 1237 (10th

Cir. 2008). “A district court abuses its discretion when it renders a judgment that

is arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (quotation

omitted). Sentences within the correctly calculated guidelines range are entitled

to a presumption of reasonableness. Id. This presumption may be rebutted,

however, if the sentence is unreasonable in light of the sentencing factors set out

at 18 U.S.C. § 3553(a). Id.

      Wimberly first contends his sentence is unreasonable because he

demonstrated remorse and voluntarily disclosed his wrongdoing through letters to

the government, which enabled the government to build its case against him.

Under 18 U.S.C. § 3553(a)(1), the district court must consider “the history and

characteristics of the defendant” when imposing sentence, and Wimberly argues it

was unreasonable for the district court to impose a within-guidelines sentence in

light of his remorse and assistance to the government. Wimberly advanced this

same argument before the district court in seeking a downward departure under

U.S.S.G. § 5K2.16. The district court rejected Wimberly’s request because, as

Wimberly’s counsel acknowledged, the government already knew about the fraud

through an anonymous tip, and because the district court did not perceive

                                         -5-
Wimberly’s letters to be motivated purely by remorse. Instead, as Wimberly

stated at his plea hearing, he took primary responsibility for the scheme in part to

help his wife retain custody of their children. The district court did not abuse its

discretion when it declined to impose a sentence below the guidelines range on

the basis of Wimberly’s letters to authorities.

      Wimberly also argues the district court abused its discretion and imposed

an unreasonable sentence when it failed to grant a variance based on his

rehabilitative efforts and the large proportion of misdemeanors comprising his

criminal history. He claims this demonstrates the district court failed to

adequately consider “the history and characteristics of the defendant.” 18 U.S.C.

§ 3553(a)(1). The district court refused to vary on these grounds because it found

Wimberly was “a very disturbed person, a person who can, when he chooses to,

bear down and participate in programs and meet requirements if he thinks they’re

going to lead to an ultimate objective. But if that objective doesn’t manifest

itself, he blows it off.” The district court also stated it agreed with the

characterization of Wimberly in the mental health evaluation that concluded he

was a risk for recidivism. Wimberly argues the district court erred in relying

upon the mental health evaluation, which was prepared in a collateral proceeding

and has no connection to the offense of conviction.

      The district court must consider the “history and characteristics of the

defendant,” 18 U.S.C. § 3553(a)(1), and the sentence imposed must be sufficient,

                                           -6-
but not greater than necessary, “to protect the public from further crimes of the

defendant.” Id. § 3553(a)(2)(C). A forensic mental health evaluation expressing

an opinion on Wimberly’s risk of recidivism is certainly relevant to the

sentencing determination. Moreover, under 18 U.S.C. § 3661, “[n]o limitation

shall be placed on the information concerning the background, character, and

conduct of a person convicted of an offense which a court of the United States

may receive and consider for the purpose of imposing an appropriate sentence.” 1

“With few limitations, a court has almost unlimited discretion in determining

what information it will hear and rely upon in imposing a sentence.” United

States v. Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009) (quotation and alteration

omitted). Because the district court was permitted to consider all relevant

information concerning Wimberly’s risk of recidivism, and because the mental

health evaluation was probative of that risk, the district court did not err in

relying upon the evaluation in rejecting his request for a variance. The court’s

determination that Wimberly poses a recidivism risk was thus adequately

supported in the record, and the district court did not abuse its discretion when it

imposed a sentence based on that determination.




      1
        There are circumstances under which the Constitution places limits on the
use of information at sentencing. United States v. Graves, 785 F.2d 870, 872
(10th Cir. 1986). Wimberly, however, has not raised any constitutional claims
with respect to the use of the mental health evaluation during his sentencing.

                                          -7-
      Similarly, Wimberly’s imperfect rehabilitative efforts do not demonstrate a

diminished risk of recidivism sufficient to render his sentence unreasonable.

Although there have been droughts of activity in Wimberly’s criminal history,

there was a flood of crimes in the two years leading up to his sentencing,

including the Katrina fraud scheme and at least four separate state convictions.

He also violated his bond conditions prior to sentencing and had to be placed in

confinement, further undercutting his claim that he has been rehabilitated to a

sufficient degree to warrant a below-guidelines sentence. In sum, the district

court’s within-guidelines sentence was not substantively unreasonable.

IV. Conclusion

      For the foregoing reasons, the judgment of the district court is affirmed.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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