US v. Joshua Cole

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:09-cr-00327-D-1 Copies to all parties and the district court/agency. [999677353].. [14-7025]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7025

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSHUA JULIUS COLE,
Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:09-cr-00327-D-1)

Argued:

September 17, 2015

Decided:

October 14, 2015

Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.
Phillip
Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
ON BRIEF: Thomas P. McNamara,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, Kristine L. Fritz, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In

2010,

Joshua

Cole

pled

guilty

to

conspiracy

to

distribute, and possession with intent to distribute, more than
50

grams

of

calculated
292-365

cocaine

Cole’s

advisory

months.

government’s

base

Then,

motion

for

and

cocaine.

sentencing
the
a

The

district

guidelines

district
downward

range

court

court
to

granted

departure

be
the

based

on

substantial assistance and sentenced Cole to 174 months.

In

2014, Cole filed a motion for reduction of sentence under 18
U.S.C. § 3582(c), relying on the 2010 retroactive amendments to
the

crack

cocaine

guidelines.

Cole

argued

that

under

the

amended guidelines, his advisory range should be 262-327 months.
Because the district court had granted a 40% reduction at the
original sentencing hearing, Cole requested the same reduction
to the new advisory range and sought a sentence of 156 months.
The district court noted that Cole was eligible for a sentence
reduction, but denied the motion.
We

review

a

district

We affirm.

court’s

decision

sentence reduction for abuse of discretion.
must

follow

a

two-step

approach

when

it

on

a

motion

for

A district court
decides

whether

to

modify an imprisonment term pursuant to a retroactive amendment
to the sentencing guidelines.
U.S. 817, 827 (2010).

See Dillon v. United States, 560

First, it must determine the prisoner’s

eligibility for a sentence reduction.
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Id.

Second, the district

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court

must

determine

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“consider
whether,

authorized...is

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any

applicable

in

its

warranted

§

3553(a)

discretion,

in

whole

particular circumstances of the case.”

or

in

factors

the
part

and

reduction
under

the

Id.

Cole concedes that the district court fulfilled the first
prong of the two-step Dillon approach when it noted that Cole
was eligible for a sentence reduction.

He argues, however, that

the district court abused its discretion when it found, under
the second prong of the Dillon analysis, that the reduction was
unwarranted in Cole’s case.

Cole contends that the district

court’s description of him shows that the district court did not
fully consider the applicable § 3553(a) factors.

Specifically,

Cole points to the district court’s use of the present tense
when

it

violent

said,

“[Cole]

criminal

is

a

history...a

recidivist
history

essentially no work history.” *

of

[with]

a

deplorable,

substance

abuse...and

(J.A. 32, emphasis added).

Cole

argues that by failing to acknowledge his efforts in prison to
address

those

problems,

the

district

court

must

have

impermissibly failed to take them into account.

*

We note the court’s description is accurate. Any remedial
measures taken in prison do not erase a “violent criminal
history” or “a history of substance abuse,” nor do they
significantly alter his work history. See J.A. 32.

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When

we

review

reduction

we

presume

a

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decision

that

the

on

a

motion

district

for

court

a

sentence

considered

the

applicable § 3553(a) factors and other relevant matters “absent
a contrary indication.”

See United States v. Smalls, 720 F.3d

193, 195-96 (4th Cir. 2013).

Here, the record not only fails to

offer such a contrary indication, it confirms that the district
court did in fact consider the § 3553(a) factors.

In its order,

the district court clearly stated, “[t]he court has reviewed the
entire

record.”

district

court

J.A.

32.

considered

Further,
all

it

factors,

is

clear

that

the

including

any

new

developments since the original sentencing, when it concluded,
“[t]he court remains convinced today, as it was on [the date of
the original sentencing], that Cole received the sentence that
was sufficient but not greater than necessary under 18 U.S.C. §
3553(a).”

Id. at 32-33 (emphasis added).

In our view, the district court adequately considered the §
3553(a) factors when it denied Cole’s § 3582(c) motion for a
sentence reduction.

We therefore affirm the district court’s

denial of Cole’s motion for a sentence reduction.
AFFIRMED

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