US v. Ernest Cook, III, No. 12-4598 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4598 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERNEST ELI COOK, III, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:10-cr-00433-CCE-1) Submitted: January 18, 2013 Decided: February 14, 2013 Before NIEMEYER, DAVIS, and KEENAN, 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 Affirmed by unpublished per curiam opinion.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. Anand P. Ramaswamy, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ernest Eli Cook, III, appeals his sentence of seventyeight months of imprisonment imposed on remand for possessing a firearm as a § 922(g)(1) accordance convicted (2006). with felon, Cook s Anders v. in violation counsel has California, of filed 18 386 U.S. a U.S.C. brief 738 in (1967), certifying that there are no meritorious issues for appeal but questioning whether Cook s sentence is greater than necessary to achieve Cook s the sentencing supplemental increase in Guidelines his goals pro se offense Manual of brief level USSG 18 U.S.C. § 3553(a) challenges pursuant to § 2K2.1(b)(4)(A) the U.S. two-level Sentencing (2010) determination of his Criminal History Category. (2006). and the We affirm. We review Cook s sentence for reasonableness, using an abuse of discretion standard. 38, 51 (2007). Gall v. United States, 552 U.S. We must first review for significant procedural errors, including improperly calculating the Guidelines range, failing to sentencing consider under the clearly 18 U.S.C. erroneous adequately explain the sentence. § 3553(a) facts, (2006) or factors, failing to Id. at 51; United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). Only if we find a sentence procedurally reasonable may we consider its substantive reasonableness. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). 2 First, Cook has at least one predicate felony conviction for a crime of violence, a North Carolina conviction for robbery with a dangerous weapon. United States v. White, 571 F.3d 365, 371 n.5 (4th Cir. 2009). Accordingly, under USSG § 2K2.1(a)(4) (2010), Cook was correctly assigned a base offense level of twenty. Because the firearm he was convicted of possessing was in fact stolen, his offense level was properly increased by two levels, regardless of whether Cook knew the weapon was stolen. See United States v. Taylor, 659 F.3d 339, 343-44 (4th Cir.) (upholding validity of USSG § 2K2.1(b)(4)(A) enhancement despite the fact that it lacks a requirement), cert. denied, 132 S. Ct. 1817 (2012). mens rea Cook was also properly placed in Criminal History Category IV, resulting in a sentencing range of sixty-three to seventy-eight months. The district court also clearly explained its reasoning, which was properly grounded in the factors set forth in 18 U.S.C. § 3553(a). We accordingly conclude that the sentence is presumption of procedurally reasonable. Cook has also failed to rebut the reasonableness we afford his within-Guidelines sentence. United States v. Powell, 650 F.3d 388, 395 (4th Cir.), cert. denied, 132 S. Ct. 350 (2011). The district court fully considered Cook s request that at least a portion of Cook s sentence run concurrently with his then undischarged 3 state term of imprisonment and ordered that nineteen months of his sentence would run concurrently. statement). USSG § 5G1.3(c) (2010) (policy Accordingly, we conclude that Cook s sentence is substantively reasonable, as well. In accordance with Anders, we have reviewed the entire record and have found no other meritorious issues for appeal. We therefore affirm Cook s sentence. This court requires that counsel inform Cook, in writing, of his right to petition the Supreme Court of the United States for further review. If Cook 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 Cook. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 4
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