US v. Franklin Mills, No. 12-4968 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4968 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRANKLIN ALEXANDER MILLS, Defendant - Appellant. No. 12-8048 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRANKLIN ALEXANDER MILLS, Defendant - Appellant. Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:09-cr-00039-WO-1) Submitted: May 31, 2013 Decided: Before MOTZ, KING, and AGEE, Circuit Judges. June 19, 2013 Affirmed by unpublished per curiam opinion.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. Graham Tod Green, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Franklin Alexander Mills appeals the sentence imposed following United this States court s v. remand Simmons, for 649 resentencing, F.3d 237 (4th pursuant Cir. 2011) to (en banc), and the district court s subsequent grant of Mills 18 U.S.C. § 3582(c)(2) (2006) motion for a sentence reduction in accordance with the Fair Sentencing Act of 2010 and Amendment 750 to the Sentencing Guidelines. 1 4968, Mills counsel filed a On direct appeal, No. 12- 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 reasonable. In No. 12-8048, Mills filed a pro se brief, in which he alleges that the district court miscalculated his base offense level in granting his § 3582(c)(2) motion. Finding no error in either appeal, we affirm. I. The sole issue raised in the Anders brief in No. 124968 is whether Mills sentence on remand was reasonable. 2 In 1 Although the district court granted Mills § 3582(c)(2) motion, it appears that Mills seeks an additional reduction beyond the reduction granted by the court. 2 Because we previously affirmed Mills convictions, our review pursuant to Anders is limited to an evaluation of the sentence imposed on remand. See United States v. Susi, 674 F.3d (Continued) 3 reviewing a sentence, we must first 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 18 U.S.C. § 3553(a) factors, or failing to adequately explain the sentence. Gall v. United States, 552 U.S. 38, 51 (2007). Once we have determined that there is no procedural we error, reasonableness of the must consider totality of the circumstances. below the appropriate reasonable. tak[ing] sentence, the into Id. Guidelines substantive account the If the sentence imposed is range, Susi, 674 F.3d at 289. it is presumptively The presumption may be rebutted by a showing that the sentence is unreasonable when measured against Montes-Pineda, the 445 § 3553(a) F.3d quotation marks omitted). 375, factors. 379 (4th United Cir. 2006) States v. (internal Upon review, we conclude that the district court committed no procedural or substantive error in imposing Mills sentence on remand. 592 F.3d 572, 577 (4th Cir. See United States v. Lynn, 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. 278, 283 (4th Cir. 2012) (explaining mandate rule and law of the case doctrine). 4 We therefore affirm the district court s amended judgment. This court requires that counsel inform Mills, in writing, of his right to petition the Supreme Court of the United States for further review. If Mills requests that a petition be filed, but counsel believes that counsel may in move representation. such this a petition court for would leave be to frivolous, withdraw from Counsel s motion must state that a copy thereof was served on Mills. II. Turning to No. 12-8048, Mills, in his pro se brief, challenges the district court s grant of the § 3582(c)(2) motion, contending that the court miscalculated the base offense level for Counts 1 and 2, 3 determined the incorrect Guidelines range, and, thus, failed to reduce his sentence by the proper number of months. The district court may reduce a defendant s term of imprisonment if the defendant originally was sentenced based on a sentencing range that has subsequently been lowered by the Sentencing consistent with Commission applicable . . policy 3 . if such statements a reduction issued by is the A jury convicted Mills of possession with intent to distribute 5.2 grams of cocaine base and 50.6 grams of cocaine (Counts 1 and 2), in violation of 21 U.S.C. § 841(a)(1) (2006), possession of a firearm in furtherance of a drug trafficking crime (Count 3), in violation of 18 U.S.C. § 924(c)(1)(A)(i), and possession of a firearm by a convicted felon (Count 4), in violation of id. § 922(g)(1). 5 Sentencing Commission. 18 U.S.C. § 3582(c)(2). Amendment 750 to the Guidelines had the effect of lowering the base offense levels for certain crack cocaine offenses and is retroactively applicable. See U.S. Sentencing Guidelines Manual § 1B1.10(c) (2012); id. app. C, amends. 750, 759. Our review of the record leads us to the conclusion that the district court did not abuse its discretion United States (providing in v. granting Munn, district standard court s of order 595 Mills F.3d § 3582(c)(2) 183, review). 186 (4th Therefore, granting a motion. we Cir. affirm § 3582(c)(2) See 2010) the sentence reduction. III. Accordingly, we affirm the district court s judgment in each of these appeals. 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 6

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