United States v. Cole

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10629
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RICKEY COLE,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CR-377-1

Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Rickey Cole pleaded guilty to possession of a firearm by a felon in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced
him to 51 months of imprisonment. Citing the Supreme Court’s decision in
United States v. Haymond, 139 S. Ct. 2369 (2019), Cole contends on appeal
that the district court violated his Fifth and Sixth Amendment rights when it
imposed guidelines enhancements to his offense level on the basis of findings

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
April 14, 2020

Lyle W. Cayce
Clerk
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No. 19-10629
2
of fact that were constitutionally required to be “found by a grand jury and
placed in the indictment, then proven to a jury beyond a reasonable doubt.”
The parties dispute whether Cole preserved in the district court the issue
that he raises on appeal. To preserve an issue for appeal, a defendant must
have raised in the district court “an objection . . . sufficiently specific to alert
the district court to the nature of the alleged error and to provide an
opportunity for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir.
2009). In determining whether an argument has been preserved for appellate
consideration, our central inquiry involves a comparison of the specificity and
clarity of the initial objection and the nature of the error raised on appeal. Id.
at 272-73.
At sentencing, Cole confirmed that he had no objection to the
presentence report (PSR) and that the PSR’s calculation of his total offense
level was correct. While he argued, inter alia, that the guideline enhancements
that the district court applied exponentially increased his total offense level
beyond the otherwise applicable base offense level, his argument did not
include a constitutional challenge to the imposition of the guidelines
enhancements, much less a challenge on the ground that the enhancements
were based on findings of fact that were required to be found by a jury beyond
a reasonable doubt. Accordingly, Cole did not preserve in the district court the
issue that he raises on appeal, see Neal, 578 F.3d at 272, and our review is for
plain error, see United States v. Garza-Lopez, 410 F.3d 268, 272 (5th Cir. 2005).
Cole failed to brief the issue he raises on appeal under requisites of plain
error. See Puckett v. United States, 556 U.S. 129, 135 (2009). Moreover, he
“concedes that the district court did not commit plain constitutional error, and
that relief would not be warranted in the absence of preservation.”
Accordingly, because Cole did not properly preserve in the district court the
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No. 19-10629
3
sole issue he raises on appeal, he has abandoned any challenge to his sentence.
See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir. 2010).
AFFIRMED.

Case: 19-10629 Document: 00515381185 Page: 3 Date Filed: 04/14/2020