United States v. Franklin Mills

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4968

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

FRANKLIN ALEXANDER MILLS,

Defendant - Appellant.

No. 12-8048

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

FRANKLIN ALEXANDER MILLS,

Defendant - Appellant.

Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:09-cr-00039-WO-1)

Submitted: May 31, 2013 Decided: June 19, 2013

Before MOTZ, KING, and AGEE, 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Affirmed by unpublished per curiam opinion.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. Graham Tod Green, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Franklin Alexander Mills appeals the sentence imposed

following this court’s remand for resentencing, pursuant to

United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en

banc), and the district court’s subsequent grant of Mills’ 18

U.S.C. § 3582(c)(2) (2006) motion for a sentence reduction in

accordance with the Fair Sentencing Act of 2010 and Amendment

750 to the Sentencing Guidelines. 1 On direct appeal, No. 12-

4968, Mills’ 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 reasonable.

In No. 12-8048, Mills filed a pro se brief, in which he alleges

that the district court miscalculated his base offense level in

granting his § 3582(c)(2) motion. Finding no error in either

appeal, we affirm.

The sole issue raised in the Anders brief in No. 12-

4968 is whether Mills’ sentence on remand was reasonable. 2 In

1
Although the district court granted Mills’ § 3582(c)(2)
motion, it appears that Mills seeks an additional reduction
beyond the reduction granted by the court.
2
Because we previously affirmed Mills’ convictions, our
review pursuant to Anders is limited to an evaluation of the
sentence imposed on remand. See United States v. Susi, 674 F.3d
(Continued)
3
reviewing a sentence, we must first 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 18 U.S.C. § 3553(a) factors, or failing

to adequately explain the sentence. Gall v. United States, 552

U.S. 38, 51 (2007). Once we have determined that there is no

procedural error, we must consider the substantive

reasonableness of the sentence, “tak[ing] into account the

totality of the circumstances.” Id. If the sentence imposed is

below the appropriate Guidelines range, it is presumptively

reasonable. Susi, 674 F.3d at 289. The presumption may be

rebutted by a showing “that the sentence is unreasonable when

measured against the § 3553(a) factors.” United States v.

Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal

quotation marks omitted). Upon review, we conclude that the

district court committed no procedural or substantive error in

imposing Mills’ sentence on remand. See United States v. Lynn,

592 F.3d 572, 577 (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.

278, 283 (4th Cir. 2012) (explaining mandate rule and law of the
case doctrine).

4
We therefore affirm the district court’s amended judgment. This

court requires that counsel inform Mills, in writing, of his

right to petition the Supreme Court of the United States for

further review. If Mills 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 Mills.

II.

Turning to No. 12-8048, Mills, in his pro se brief,

challenges the district court’s grant of the § 3582(c)(2)

motion, contending that the court miscalculated the base offense

level for Counts 1 and 2, 3 determined the incorrect Guidelines

range, and, thus, failed to reduce his sentence by the proper

number of months. The district court may reduce a defendant’s

term of imprisonment if the defendant originally was sentenced

“based on a sentencing range that has subsequently been lowered

by the Sentencing Commission . . . if such a reduction is

consistent with applicable policy statements issued by the

3
A jury convicted Mills of possession with intent to
distribute 5.2 grams of cocaine base and 50.6 grams of cocaine
(Counts 1 and 2), in violation of 21 U.S.C. § 841(a)(1) (2006),
possession of a firearm in furtherance of a drug trafficking
crime (Count 3), in violation of 18 U.S.C. § 924(c)(1)(A)(i),
and possession of a firearm by a convicted felon (Count 4), in
violation of id. § 922(g)(1).

5
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Amendment 750

to the Guidelines had the effect of lowering the base offense

levels for certain crack cocaine offenses and is retroactively

applicable. See U.S. Sentencing Guidelines Manual § 1B1.10(c)

(2012); id. app. C, amends. 750, 759. Our review of the record

leads us to the conclusion that the district court did not abuse

its discretion in granting Mills’ § 3582(c)(2) motion. See

United States v. Munn, 595 F.3d 183, 186 (4th Cir. 2010)

(providing standard of review). Therefore, we affirm the

district court’s order granting a § 3582(c)(2) sentence

reduction.

III.

Accordingly, we affirm the district court’s judgment

in each of these appeals. 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