USA v. Johnny Lee Cole, No. 12-15367 (11th Cir. 2013)
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Case: 12-15367 Date Filed: 06/03/2013 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-15367 Non-Argument Calendar ________________________ D.C. Docket No. 1:12-cr-00021-JEC-ECS-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOHNNY LEE COLE, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (June 3, 2013) Before BARKETT, HULL, and JORDAN, Circuit Judges. PER CURIAM: Johnny Lee Cole appeals his 188-month total sentence, imposed after pleading guilty to three counts of child pornography distribution, in violation of 18 Case: 12-15367 Date Filed: 06/03/2013 Page: 2 of 3 U.S.C. § 2252A(a)(2), and one count of child pornography possession, in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court calculated an advisory guidelines range of 188 to 235 months imprisonment, although owing to a prior state court conviction for child molestation, Cole faced a statutory minimum term of 15 years (180 months) and a statutory maximum term of 40 years. 18 U.S.C. § 2252A(b)(1). Cole requested a downward variance from the guidelines range to the statutory minimum of 180 months, which the court rejected before imposing a low-end total sentence of 188 months. Cole complains on appeal that his total sentence is substantively unreasonable because the court abused its discretion in denying his eight-month downward variance request, and the resulting total sentence is greater than necessary to satisfy the sentencing factors set out in 18 U.S.C. § 3553(a). We review the substantive reasonableness of a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The district court s denial of a defendant s request for a variance is subsumed under that review. See United States v. Willis, 560 F.3d 1246, 1251 (11th Cir. 2009) (reviewing the reasonableness of the district court s denial of the defendant s motion for variance). After reviewing the record, we find no reversible error. We cannot say that Cole s 188-month total sentence is substantively unreasonable. The total sentence 2 Case: 12-15367 Date Filed: 06/03/2013 Page: 3 of 3 falls at the low end of the guidelines range and is well below the statutory maximum. The court s denial of his request for a downward variance was not a clear error in judgment, and moreover, the total sentence reflects several of the § 3553(a) factors, including the seriousness of the offense conduct, the history and characteristics of the defendant, and the need to protect the public. AFFIRMED. 3
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