UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4598
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERNEST ELI COOK, III,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:10-cr-00433-CCE-1)
Submitted: January 18, 2013 Decided: February 14, 2013
Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anand P. Ramaswamy, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ernest Eli Cook, III, appeals his sentence of seventy-
eight months of imprisonment imposed on remand for possessing a
firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006). Cook’s counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious issues for appeal but
questioning whether Cook’s sentence is greater than necessary to
achieve the sentencing goals of 18 U.S.C. § 3553(a) (2006).
Cook’s supplemental pro se brief challenges the two-level
increase in his offense level pursuant to U.S. Sentencing
Guidelines Manual “USSG” § 2K2.1(b)(4)(A) (2010) and the
determination of his Criminal History Category. We affirm.
We review Cook’s sentence for reasonableness, using an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). We must first review for significant procedural
errors, including improperly calculating the Guidelines range,
failing to consider the 18 U.S.C. § 3553(a) (2006) factors,
sentencing under clearly erroneous facts, or failing to
adequately explain the sentence. Id. at 51; United States v.
Evans, 526 F.3d 155, 161 (4th Cir. 2008). Only if we find a
sentence procedurally reasonable may we consider its substantive
reasonableness. United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009).
2
First, Cook has at least one predicate felony
conviction for a crime of violence, a North Carolina conviction
for robbery with a dangerous weapon. United States v. White,
571 F.3d 365, 371 n.5 (4th Cir. 2009). Accordingly, under USSG
§ 2K2.1(a)(4) (2010), Cook was correctly assigned a base offense
level of twenty. Because the firearm he was convicted of
possessing was in fact stolen, his offense level was properly
increased by two levels, regardless of whether Cook knew the
weapon was stolen. See United States v. Taylor, 659 F.3d 339,
343-44 (4th Cir.) (upholding validity of USSG § 2K2.1(b)(4)(A)
enhancement despite the fact that it lacks a mens rea
requirement), cert. denied, 132 S. Ct. 1817 (2012). Cook was
also properly placed in Criminal History Category IV, resulting
in a sentencing range of sixty-three to seventy-eight months.
The district court also clearly explained its reasoning, which
was properly grounded in the factors set forth in 18 U.S.C.
§ 3553(a). We accordingly conclude that the sentence is
procedurally reasonable.
Cook has also failed to rebut the presumption of
reasonableness we afford his within-Guidelines sentence. United
States v. Powell, 650 F.3d 388, 395 (4th Cir.), cert. denied,
132 S. Ct. 350 (2011). The district court fully considered
Cook’s request that at least a portion of Cook’s sentence run
concurrently with his then undischarged state term of
3
imprisonment and ordered that nineteen months of his sentence
would run concurrently. USSG § 5G1.3(c) (2010) (policy
statement). Accordingly, we conclude that Cook’s sentence is
substantively reasonable, as well.
In accordance with Anders, we have reviewed the entire
record and have found no other meritorious issues for appeal.
We therefore affirm Cook’s sentence. This court requires that
counsel inform Cook, in writing, of his right to petition the
Supreme Court of the United States for further review. If Cook
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 Cook. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
4