US v. Kendall Cohen

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:09-cr-00160-PMD-1 Copies to all parties and the district court/agency. [999560214].. [14-4259]

Appeal: 14-4259

Doc: 50

Filed: 04/07/2015

Pg: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4259

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENDALL T. COHEN,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Patrick Michael Duffy, Senior
District Judge. (2:09-cr-00160-PMD-1)

Submitted:

March 17, 2015

Before NIEMEYER and
Senior Circuit Judge.

GREGORY,

Decided:

Circuit

Judges,

April 7, 2015

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Janis
Richardson
Hall,
Greenville,
South
Carolina,
for
Appellant.
William N. Nettles, United States Attorney, Jimmie
Ewing,
Assistant
United
States
Attorney,
Columbia,
South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 14-4259

Doc: 50

Filed: 04/07/2015

Pg: 2 of 5

PER CURIAM:
Kendall

T.

Cohen

appeals

his

conviction

and

120-month

sentence imposed following his guilty plea, pursuant to a plea
agreement, to one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2012).
Cohen’s

attorney

filed

a

brief,

pursuant

to

Anders

v.

California, 386 U.S. 738 (1967), raising as a possible issue for
review

whether

the

district

court

committed

reversible

error

when it allegedly failed to comply with Fed. R. Crim. P. 11 when
it

accepted

Cohen’s

guilty

plea.

Cohen

filed

a

pro

se

supplemental brief, in which he repeats counsel’s assignment of
error,

and

raises

additional

assignments

ineffective assistance of counsel claims.

of

error,

including

And in a supplemental

brief filed by counsel, Cohen asserts that: (1) his prior South
Carolina felony conviction for assault while resisting arrest is
not a “crime of violence” under the Sentencing Guidelines and,
thus, his Guidelines range was erroneously calculated; and (2)
the district court provided an insufficient explanation for his
sentence.

Finding no error, we affirm.

First, we conclude that the district court did not err when
it accepted Cohen’s guilty plea.

Because Cohen did not move in

the district court to withdraw his plea, we review the guilty
plea hearing for plain error.

United States v. Martinez, 277

F.3d 517, 525 (4th Cir. 2002).

To establish plain error, Cohen
2

Appeal: 14-4259

Doc: 50

must show:

Filed: 04/07/2015

Pg: 3 of 5

(1) there was error; (2) the error was plain; and

(3) the error affected his substantial rights.

Henderson v.

United States, ___ U.S. ___, 133 S. Ct. 1121, 1126–27 (2013);
United States v. Olano, 507 U.S. 725, 732 (1993).

In the guilty

plea

“show[ing]

context,

a

defendant

meets

this

burden

by

a

reasonable probability that, but for the error, he would not
have entered the plea.”

United States v. Massenburg, 564 F.3d

337, 343 (4th Cir. 2009) (internal quotation marks omitted).

We

have reviewed the transcript of Cohen’s guilty plea hearing and
conclude that the district court complied with Rule 11, that
Cohen’s guilty plea was knowing and voluntary, and that there
was

a

factual

basis

for

the

plea.

Accordingly,

we

affirm

Cohen’s conviction.
We also discern no reversible error in the district court’s
decision to impose a 120-month sentence.
Cohen’s

sentence

discretion

for

standard,

reasonableness,
Gall

v.

United

Although we review

applying

States,

an

552

abuse-of-

U.S.

38,

46

(2007), we review unpreserved non-structural sentencing errors
for plain error.

United States v. Lynn, 592 F.3d 572, 575–76

(4th Cir. 2010).

Our review requires consideration of both the

procedural

and

substantive

Gall, 552 U.S. at 51.
court

properly

reasonableness

of

the

sentence.

We first assess whether the district

calculated

the

advisory

Guidelines

range,

considered the factors set forth at 18 U.S.C. § 3553(a) (2012),
3

Appeal: 14-4259

Doc: 50

analyzed

any

Filed: 04/07/2015

arguments

Pg: 4 of 5

presented

by

the

sufficiently explained the selected sentence.
Lynn, 592 F.3d at 575–76.

parties,

and

Id. at 49–51; see

If we find no procedural error, we

review the sentence for substantive reasonableness, “examin[ing]
the totality of the circumstances[.]”

United States v. Mendoza–

Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).

“Any sentence that

is within or below a properly calculated Guidelines range is
presumptively

[substantively]

reasonable”

and

“[s]uch

a

presumption can only be rebutted by showing that the sentence is
unreasonable
factors.”

when

measured

against

the

18

U.S.C.

§ 3553(a)

United States v. Louthian, 756 F.3d 295, 306 (4th

Cir.), cert. denied, ___ U.S. ___, 135 S. Ct. 421 (2014).
We

conclude

substantively

that

reasonable.

calculated

Cohen’s

argument,

afforded

adequately
sentence.

Cohen’s

sentence
The

is

district

Guidelines

range,

Cohen

opportunity

explained

its

an

reasons

for

procedurally
court

listened
to

to

and

correctly
counsel’s

allocute,

imposing

the

and

120-month

Thus, we affirm Cohen’s sentence.

In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. *
therefore

affirm

the

district

court’s

*

judgment.

This

We

court

We have reviewed carefully the issues raised in Cohen’s
pro se supplemental informal brief and find them to be without
merit.

4

Appeal: 14-4259

Doc: 50

Filed: 04/07/2015

Pg: 5 of 5

requires counsel to inform Cohen, in writing, of the right to
petition

the

Supreme

Court

of

the

United

States

for

further

review.

If Cohen requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel
may

move

in

this

court

to

withdraw

from

representation.

Counsel’s motion must state that a copy of the motion was served
on Cohen.

We dispense with oral argument because the facts and

legal arguments are adequately presented in the materials before
this court and argument would not aid the decisional process.

AFFIRMED

5