UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4044
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN D. COTTINGHAM, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:07-cr-00340-RBH-1)
Submitted: September 15, 2008 Decided: November 4, 2008
Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. William E. Day, II,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On June 22, 2007, John Cottingham pled guilty to one
count of failure to collect and pay over payroll taxes, in
violation of 26 U.S.C. § 7201 (2000) (Count One) and one count of
tax evasion for failure to pay over payroll taxes, in violation of
26 U.S.C. § 7202 (2000) (Count Seventeen). At Cottingham’s
sentencing hearing, the district court granted Cottingham’s request
for a variance and reduced Cottingham’s offense level from offense
level 15 to offense level 12. In conformity with Cottingham’s new
advisory guidelines range, the district court sentenced Cottingham
to six months’ imprisonment on Counts One and Seventeen, to run
concurrently, and one year of supervised release. The district
court also ordered that Cottingham spend the first ten months of
his supervised release on home confinement with electronic
monitoring and that he pay $277,574 in restitution.
Cottingham timely noted his appeal. On appeal,
Cottingham has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967).* In his Anders brief, Cottingham has presented
for review whether his plea was valid under Federal Rule of
Criminal Procedure 11 and whether his sentence was reasonable.
Cottingham’s guilty plea hearing fully complied with the
requirements of Rule 11. At the outset of Cottingham’s hearing,
*
Cottingham was informed of his right to file a pro se
supplemental brief. He has elected not to do so.
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the district court personally addressed Cottingham, placed him
under oath, and made certain he understood the penalties for
perjury should he knowingly make a false statement during his
colloquy. The court then determined Cottingham was sober and
competent to enter a guilty plea.
Prior to accepting Cottingham’s guilty plea, the district
court explained to Cottingham federal sentencing, including the
advisory nature of the guidelines, supervised release, the
abolishment of parole, and the mandatory special assessment. The
court then ensured Cottingham understood that by pleading guilty he
was waiving his right to plead not guilty, to a trial by jury, to
the assistance of counsel, to confront and cross-examine adverse
witnesses, to present evidence on his own behalf, to refuse to
testify, to compel the attendance of witnesses, and to be presumed
innocent unless the Government should prove him guilty beyond a
reasonable doubt.
Also, the district court read into the record Counts One
and Seventeen of the indictment and the possible penalties for each
charge, and Cottingham stated he understood the elements of the
offenses and the maximum possible penalties he faced. Cottingham
indicated that he was pleading guilty freely and voluntarily and
that he was completely satisfied with his lawyer’s representation
of him. The district court conducted a thorough Rule 11 hearing,
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and consequently, Cottingham’s guilty plea was knowing and
voluntary.
Additionally, Cottingham’s sentence was reasonable.
Following United States v. Booker, 543 U.S. 220 (2005), a district
court must engage in a multi-step process at sentencing. First, it
must calculate the appropriate guidelines range. It must then
consider the resulting range in conjunction with the factors set
forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) and
determine an appropriate sentence.
Appellate review of a district court’s imposition of a
sentence is for abuse of discretion. Gall v. United States, 128 S.
Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d
468, 473 (4th Cir. 2007). The appellate court must first ensure
that the district court committed no procedural error, such as
failing to calculate (or improperly calculating) the guidelines
range, treating the guidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence - including an explanation for any deviation from the
guidelines range. Gall, 128 S. Ct. at 597.
If there are no procedural errors, the appellate court
then considers the substantive reasonableness of the sentence. Id.
A substantive reasonableness review entails taking into account the
totality of the circumstances, including the extent of any variance
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from the Guidelines range. Pauley, 511 F.3d at 473 (quotations and
citation omitted). While the court may presume a sentence within
the guidelines range to be reasonable, it may not presume a
sentence outside the range to be unreasonable. Id. Moreover, it
must give due deference to the district court’s decision that the
§ 3553(a) factors justify imposing a variant sentence and to its
determination regarding the extent of any variance. Even if the
reviewing court would have reached a different sentence result on
its own, this fact alone is insufficient to justify reversal of the
district court. Id. at 474.
Here, the district court did not commit procedural error
in sentencing Cottingham. First, the district court properly
calculated Cottingham’s advisory guidelines range. Based on the
tax loss as stipulated by the parties, Cottingham had a base
offense level of 18, which was properly reduced three levels
pursuant to U.S.S.G. § 3E1.1. The district court then granted
Cottingham’s request for a variance and reduced Cottingham’s base
offense level three additional levels, resulting in an advisory
guidelines range of 10-16 months’ imprisonment. As Cottingham’s
offense level fell within Zone C of the Sentencing Table, the
district court acted within its discretion by sentencing him to six
months’ imprisonment followed by ten months of home detention with
electronic monitoring. U.S. Sentencing Guidelines Manual
§ 5C1.1(d). Additionally, prior to imposing sentence, the district
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court heard the arguments of counsel and Cottingham’s allocution
and specifically considered the advisory nature of the guidelines
and the § 3553(a) factors. Finally, the district court provided a
reasoned explanation for granting Cottingham’s request for a
variance. Accordingly, the district court did not commit
procedural error in sentencing Cottingham.
Additionally, Cottingham’s sentence was substantively
reasonable. In granting Cottingham’s request for a variance, the
district court properly considered Cottingham’s age, his long
history of health problems, his lack of a prior criminal record,
the extent of Cottingham’s community service, and the outpouring of
support for Cottingham. The district court balanced these facts
against the facts that his offense continued for an extended period
of time and that, as of the date of sentencing, Cottingham had paid
nothing towards restitution. The district court concluded
Cottingham’s sentence would reflect the seriousness of his offense,
promote respect for the law, and provide for just punishment. The
record does not indicate the district court abused its discretion.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Cottingham, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Cottingham requests that a petition be filed, but
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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 Cottingham.
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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