UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7025
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSHUA JULIUS COLE,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:09-cr-00327-D-1)
Argued: September 17, 2015 Decided: October 14, 2015
Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Phillip
Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, Kristine L. Fritz, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In 2010, Joshua Cole pled guilty to conspiracy to
distribute, and possession with intent to distribute, more than
50 grams of cocaine base and cocaine. The district court
calculated Cole’s advisory sentencing guidelines range to be
292-365 months. Then, the district court granted the
government’s motion for a downward departure based on
substantial assistance and sentenced Cole to 174 months. In
2014, Cole filed a motion for reduction of sentence under 18
U.S.C. § 3582(c), relying on the 2010 retroactive amendments to
the crack cocaine guidelines. Cole argued that under the
amended guidelines, his advisory range should be 262-327 months.
Because the district court had granted a 40% reduction at the
original sentencing hearing, Cole requested the same reduction
to the new advisory range and sought a sentence of 156 months.
The district court noted that Cole was eligible for a sentence
reduction, but denied the motion. We affirm.
We review a district court’s decision on a motion for
sentence reduction for abuse of discretion. A district court
must follow a two-step approach when it decides whether to
modify an imprisonment term pursuant to a retroactive amendment
to the sentencing guidelines. See Dillon v. United States, 560
U.S. 817, 827 (2010). First, it must determine the prisoner’s
eligibility for a sentence reduction. Id. Second, the district
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court must “consider any applicable § 3553(a) factors and
determine whether, in its discretion, the reduction
authorized...is warranted in whole or in part under the
particular circumstances of the case.” Id.
Cole concedes that the district court fulfilled the first
prong of the two-step Dillon approach when it noted that Cole
was eligible for a sentence reduction. He argues, however, that
the district court abused its discretion when it found, under
the second prong of the Dillon analysis, that the reduction was
unwarranted in Cole’s case. Cole contends that the district
court’s description of him shows that the district court did not
fully consider the applicable § 3553(a) factors. Specifically,
Cole points to the district court’s use of the present tense
when it said, “[Cole] is a recidivist [with] a deplorable,
violent criminal history...a history of substance abuse...and
essentially no work history.” * (J.A. 32, emphasis added). Cole
argues that by failing to acknowledge his efforts in prison to
address those problems, the district court must have
impermissibly failed to take them into account.
*
We note the court’s description is accurate. Any remedial
measures taken in prison do not erase a “violent criminal
history” or “a history of substance abuse,” nor do they
significantly alter his work history. See J.A. 32.
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When we review a decision on a motion for a sentence
reduction we presume that the district court considered the
applicable § 3553(a) factors and other relevant matters “absent
a contrary indication.” See United States v. Smalls, 720 F.3d
193, 195-96 (4th Cir. 2013). Here, the record not only fails to
offer such a contrary indication, it confirms that the district
court did in fact consider the § 3553(a) factors. In its order,
the district court clearly stated, “[t]he court has reviewed the
entire record.” J.A. 32. Further, it is clear that the
district court considered all factors, including any new
developments since the original sentencing, when it concluded,
“[t]he court remains convinced today, as it was on [the date of
the original sentencing], that Cole received the sentence that
was sufficient but not greater than necessary under 18 U.S.C. §
3553(a).” Id. at 32-33 (emphasis added).
In our view, the district court adequately considered the §
3553(a) factors when it denied Cole’s § 3582(c) motion for a
sentence reduction. We therefore affirm the district court’s
denial of Cole’s motion for a sentence reduction.
AFFIRMED
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