United States of America v. Van Milton Cole, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5000
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VAN MILTON COLE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:08-cr-00361-WO-1)
Submitted: July 9, 2013 Decided: July 18, 2013
Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Ripley Rand,
United States Attorney, Lisa B. Boggs, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Van Milton Cole, Jr., appeals the 105-month sentence
imposed following this court’s remand for resentencing in
accordance with the Fair Sentencing Act of 2010 (FSA). Cole’s
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 procedurally reasonable. Although
Cole was informed of his right to file a supplemental pro se
brief, he has not done so. Finding no error, we affirm.
In the Anders brief, counsel first contends that the
district court procedurally erred by failing to account for the
factors listed in U.S. Sentencing Guidelines Manual (USSG)
§ 5K1.1(a) (2009) in determining the extent of the downward
departure awarded on remand. We have jurisdiction to consider
Cole’s appeal of the extent of the district court’s downward
departure sentence only if it “resulted in a sentence imposed in
violation of law or resulted from an incorrect application of
the Guidelines.” United States v. Hill, 70 F.3d 321, 324 (4th
Cir. 1995); see 18 U.S.C. § 3742(a) (2006). Section 5K1.1(a) of
the Guidelines enumerates a non-exclusive list of factors the
district court “may” consider in ruling on a downward departure
motion. Upon review, we conclude that the downward departure
sentence imposed by the district court was not contrary to law

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and that the court correctly applied USSG § 5K1.1(a) in
considering the downward departure motion.
Counsel next contends that the district court
procedurally erred by failing to fully address the 18 U.S.C.
§ 3553(a) (2006) factors in imposing his sentence on remand. In
reviewing a sentence, we must 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 § 3553(a) factors, or failing to adequately
explain the sentence. Gall v. United States, 552 U.S. 38, 51
(2007). The district court is not required to “robotically tick
through § 3553(a)’s every subsection.” United States v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006). However, the
district court “must place on the record an ‘individualized
assessment’ based on the particular facts of the case before it.
This individualized assessment need not be elaborate or lengthy,
but it must provide a rationale tailored to the particular case
at hand and adequate to permit ‘meaningful appellate review.’”
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)
(quoting Gall, 552 U.S. at 50) (citation and footnote omitted)).
With the above standards in mind, we conclude that the district
court adequately considered the § 3553(a) factors and therefore
did not abuse its discretion in imposing Cole’s sentence on

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remand. See United States v. Lynn, 592 F.3d 572, 576, 578 (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.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Cole, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Cole 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
Cole. 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

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