United States v. Francis Marimo ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4014
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FRANCIS MARIMO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:13-cr-00106-FL-1)
Submitted: September 23, 2014 Decided: September 25, 2014
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
North Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina; Alan James
Phelps, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francis Marimo pleaded guilty pursuant to a written
plea agreement to two counts of odometer tampering, in violation
of 49 U.S.C. §§ 32703(2), 32709(b) (2012). He received an
eighteen-month sentence. On appeal, counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal, but
questioning whether Marimo’s guilty plea was knowing and
voluntary, the Fed. R. Crim. P. 11 hearing was adequate, the
sentence imposed by the district court was reasonable, and
ineffective assistance of counsel conclusively appears on the
record. Marimo has not filed a pro se supplemental brief. The
Government declined to file a response. We affirm.
Because Marimo did not move to withdraw his plea, we
review his Rule 11 hearing for plain error. United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Here, we find no
error, as the district court fully complied with Rule 11 when
accepting Marimo’s plea. Given no indication to the contrary,
we therefore find that Marimo’s plea was knowing and voluntary,
and, consequently, final and binding. See United States v.
Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).
Next we review Marimo’s sentence for reasonableness
using an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007). The court first reviews for significant
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procedural error, and if the sentence is free from such error,
we then consider substantive reasonableness. Id. at 51.
Procedural error includes improperly calculating the Sentencing
Guidelines range, treating the Guidelines range as mandatory,
failing to consider the 18 U.S.C. § 3553(a) (2012) factors, and
failing to adequately explain the selected sentence. Id. To
adequately explain the sentence, the district court must make an
“individualized assessment” by applying the relevant § 3553(a)
factors to the case’s specific circumstances. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). Substantive
reasonableness is determined by considering the totality of the
circumstances, and if the sentence is within the
properly-calculated Guidelines range, this court applies a
presumption of reasonableness. United States v. Strieper, 666
F.3d 288, 295 (4th Cir. 2012).
The district court heard argument from the parties,
afforded Marimo an opportunity to allocute, and imposed a
sentence of eighteen months—at the bottom of the Sentencing
Guidelines range. The court expressly considered the § 3553(a)
factors and rendered an individualized assessment in this case.
The court stated that the sentence was sufficiently severe, but
not greater than necessary, to punish the offense, to promote
respect for the law, and discourage this type of conduct. We
conclude that Marimo has not rebutted the presumption of
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reasonableness and that the court did not abuse its discretion
in imposing the chosen sentence.
Although counsel raised whether Marimo received
ineffective assistance of counsel, he stated that he could find
no evidence of ineffective assistance. Claims of ineffective
assistance of counsel generally are not cognizable on direct
appeal. United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). However, ineffective assistance claims are cognizable on
direct appeal if the record conclusively establishes ineffective
assistance. Massaro v. United States, 538 U.S. 1690, 1693-94
(2003); United States v. Richardson, 195 F.3d 192, 198 (4th Cir.
1999). The record does not conclusively establish ineffective
assistance of counsel.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Marimo’s convictions and sentence. This
court requires that counsel inform Marimo, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Marimo 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 Marimo. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before this court and argument would not aid the
decisional process.
AFFIRMED
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