United States v. Damon Cole, 4th Cir. (2015)
Uploaded by
Scribd Government DocsUnited States v. Damon Cole, 4th Cir. (2015)
Uploaded by
Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4914
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
DAMON LESHAWN COLE, a/k/a Damon Lashawn Cole, a/k/a Calvin
Scott,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:14-cr-00104-NCT-1)
Submitted:
May 29, 2015
Before MOTZ and
Circuit Judge.
GREGORY,
Decided:
Circuit
Judges,
and
June 11, 2015
DAVIS,
Senior
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Duberstein,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Sandra J.
Hairston, First Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Damon
firearm
Leshawn
in
violation
Cole
furtherance
of
18
U.S.C.
pleaded
of
guilty
drug
924(c)
to
possession
trafficking
(2012).
The
of
offense,
district
a
in
court
sentenced Cole to 60 months of imprisonment followed by five
years
of
supervised
release
and
Cole
now
appeals.
For
the
reasons that follow, we affirm.
On appeal, Cole argues that the district court failed to
adequately explain the five-year period of supervised release
and
that
the
unreasonable.
term
of
supervised
release
is
substantively
We review a sentence for reasonableness, applying
an abuse of discretion standard.
Gall v. United States, 552
U.S. 38, 51 (2007); see also United States v. Layton, 564 F.3d
330, 335 (4th Cir. 2009).
In so doing, we first examine the
sentence for significant procedural error, including failing
to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18
U.S.C.]
based
on
3553(a)
clearly
[(2012)]
erroneous
factors,
facts,
explain the chosen sentence . . . .
or
selecting
failing
to
sentence
adequately
Gall, 552 U.S. at 51.
We
then consider[] the substantive reasonableness of the sentence
imposed.
United States v. Evans, 526 F.3d 155, 161 (4th Cir.
2008) (quoting Gall, 552 U.S. at 51).
If the sentence is within
the Guidelines range, we apply a presumption of reasonableness.
2
Rita v. United States, 551 U.S. 338, 346-59 (2007) (upholding
presumption of reasonableness for within-Guidelines sentence).
In sentencing a defendant, a district court must conduct an
individualized
assessment
of
the
particular
facts
of
every
sentence, whether the court imposes a sentence above, below, or
within the Guidelines range.
325, 330 (4th Cir. 2009).
United States v. Carter, 564 F.3d
With respect to the adequacy of the
explanation, as Cole failed to request a sentence or period of
supervised release other than that imposed, we review this issue
for plain error.
See United States v. Lynn, 592 F.3d 572, 578
(4th Cir. 2010).
To prevail, [Cole] must show that an error
(1)
was
made,
(2)
is
plain
(i.e.,
(3) affects substantial rights.
F.3d
170,
172
(4th
citation omitted).
exercise
[our]
Cir.
2015)
clear
or
obvious),
and
United States v. Lemon, 777
(internal
quotation
marks
and
Even if Cole makes this showing, we may
discretion
to
correct
the
error
only
if
it
seriously affects the fairness, integrity or public reputation
of
judicial
proceedings.
Id.
(internal
quotation
marks
omitted).
We have thoroughly reviewed the record and the relevant
legal
authorities
and
conclude
that
Cole
has
failed
to
demonstrate that the district court plainly erred in imposing
the period of supervised release.
We further conclude that Cole
has failed to overcome the presumption of reasonableness applied
to his within-Guidelines sentence and supervised release period.
Accordingly, we affirm the judgment of the district court.
We
dispense
contentions
with
are
oral
argument
adequately
because
presented
in
the
facts
and
the
materials
legal
before
this court and argument would not aid in the decisional process.
AFFIRMED
