United States v. Van Cole, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-5000

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VAN MILTON COLE, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:08-cr-00361-WO-1)

Submitted: July 9, 2013 Decided: July 18, 2013

Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Ripley Rand,
United States Attorney, Lisa B. Boggs, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Van Milton Cole, Jr., appeals the 105-month sentence

imposed following this court’s remand for resentencing in

accordance with the Fair Sentencing Act of 2010 (FSA). Cole’s

counsel 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 the sentence imposed by the

district court on remand was procedurally reasonable. Although

Cole was informed of his right to file a supplemental pro se

brief, he has not done so. Finding no error, we affirm.

In the Anders brief, counsel first contends that the

district court procedurally erred by failing to account for the

factors listed in U.S. Sentencing Guidelines Manual (USSG)

§ 5K1.1(a) (2009) in determining the extent of the downward

departure awarded on remand. We have jurisdiction to consider

Cole’s appeal of the extent of the district court’s downward

departure sentence only if it “resulted in a sentence imposed in

violation of law or resulted from an incorrect application of

the Guidelines.” United States v. Hill, 70 F.3d 321, 324 (4th

Cir. 1995); see 18 U.S.C. § 3742(a) (2006). Section 5K1.1(a) of

the Guidelines enumerates a non-exclusive list of factors the

district court “may” consider in ruling on a downward departure

motion. Upon review, we conclude that the downward departure

sentence imposed by the district court was not contrary to law

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and that the court correctly applied USSG § 5K1.1(a) in

considering the downward departure motion.

Counsel next contends that the district court

procedurally erred by failing to fully address the 18 U.S.C.

§ 3553(a) (2006) factors in imposing his sentence on remand. In

reviewing a sentence, we must ensure that the district court did

not commit any “significant procedural error,” such as failing

to properly calculate the applicable Guidelines range, failing

to consider the § 3553(a) factors, or failing to adequately

explain the sentence. Gall v. United States, 552 U.S. 38, 51

(2007). The district court is not required to “robotically tick

through § 3553(a)’s every subsection.” United States v.

Johnson, 445 F.3d 339, 345 (4th Cir. 2006). However, the

district court “must place on the record an ‘individualized

assessment’ based on the particular facts of the case before it.

This individualized assessment need not be elaborate or lengthy,

but it must provide a rationale tailored to the particular case

at hand and adequate to permit ‘meaningful appellate review.’”

United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)

(quoting Gall, 552 U.S. at 50) (citation and footnote omitted)).

With the above standards in mind, we conclude that the district

court adequately considered the § 3553(a) factors and therefore

did not abuse its discretion in imposing Cole’s sentence on

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remand. See United States v. Lynn, 592 F.3d 572, 576, 578 (4th

Cir. 2010) (providing standard of review).

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 Cole, in writing, of his right to

petition the Supreme Court of the United States for further

review. If Cole requests that a petition be filed, but counsel

believes that such a petition would be frivolous, counsel may

move in this court for leave to withdraw from representation.

Counsel’s motion must state that a copy thereof was served on

Cole. We dispense with oral argument because the facts and

legal conclusions are adequately presented in the materials

before this court and argument would not aid the decisional

process.

AFFIRMED