United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1713
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jermaine A. Cole, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: July 28, 2010
Filed: August 2, 2010
___________
Before LOKEN, MURPHY, and BENTON, Circuit Judges.
___________
PER CURIAM.
Jermaine Cole appeals the sentence the district court1 imposed after he pleaded
guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Counsel has moved to withdraw and has filed a brief
under Anders v. California, 386 U.S. 738 (1967). In supplemental pro se filings, Cole
argues that (1) his plea was induced by false promises as to his sentence; (2) his
counsel was ineffective; (3) the district court wrongly imposed a 4-level enhancement
pursuant to U.S.S.G. § 2K2.1(b)(6) for possessing the firearm in connection with
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
“another felony offense”--the state offenses of resisting a felony arrest and unlawful
use of a weapon--because the state dismissed the charges; (4) the court improperly
calculated his criminal history category; (5) the presentence report (PSR) incorrectly
reported the date that he committed the burglary underlying his prior state burglary
conviction; (6) his sentence is unreasonable; and (7) the court should have imposed
his federal sentence to run concurrently with the state sentence that he received upon
revocation of probation for his prior burglary conviction. For the following reasons,
we affirm.
First, we review Cole’s challenges to the application of the advisory Guidelines
only for plain error because he did not object below. See United States v. Nichols,
151 F.3d 850, 854 (8th Cir. 1998). We find no error, plain or otherwise: the facts
support the criminal history calculation (and we note that the PSR correctly reported
the date of his burglary), see U.S.S.G. § 4A1.1 (describing criminal history points
assessed for prior sentences); the 4-level enhancement was properly applied, see
U.S.S.G. § 2K2.1, comment. (n.14(C)) (“another felony offense” for purposes of
subsection (b)(6) means any offense punishable by more than 1 year in prison,
regardless whether criminal charge was brought or conviction obtained); and the court
properly imposed the federal sentence to run consecutively to the state sentence that
Cole received upon revocation of his probation, see U.S.S.G. § 5G1.3(c) & comment.
(n.3(C)) (describing sentencing options in cases where defendant was on probation at
time of instant offense and has had such probation revoked; Commission recommends
that sentence for instant offense run consecutively to sentence imposed for
revocation).
Second, we conclude that the record is devoid of evidence to support Cole’s
argument that his plea was induced by promises as to his sentence, especially in light
of his plea-hearing testimony disavowing any such promises. See Blackledge v.
Allison, 431 U.S. 63, 74 (1977) (solemn declarations in open court carry strong
presumption of verity). Third, we find nothing suggesting that the court abused its
-2-
discretion by imposing an unreasonable sentence. See United States v. Feemster, 572
F.3d 455, 461 (8th Cir. 2009) (en banc) (standard of review; describing factors that
demonstrate procedural error); United States v. Luleff, 574 F.3d 566, 569 (8th Cir.
2009) (circumstances where court abuses its discretion, resulting in unreasonable
sentence; sentence within Guidelines range is accorded presumption of substantive
reasonableness on appeal). And finally, Cole’s ineffective-assistance claims are not
properly before us in this direct criminal appeal. See United States v. McAdory, 501
F.3d 868, 872-73 (8th Cir. 2007).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no nonfrivolous issues for appeal. Accordingly, we affirm
the district court’s judgment, and we grant counsel’s motion to withdraw, subject to
counsel informing Cole about procedures for seeking rehearing or filing a petition for
certiorari.
______________________________
-3-