                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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, 104 F.3d 649, 652 (4th Cir. 1997).

       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

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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, 949 F.2d at 120.

      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).        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. at 41.

      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.; 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.

§ 2B1.1, comment. (n.19(A)(ii)).

       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

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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, 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.

       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’

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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, 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.

      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.

                                                                              AFFIRMED




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