United States v. Franklin Mills , 529 F. App'x 358 ( 2013 )

UNPUBLISHED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: June 19, 2013
Before MOTZ, KING, and AGEE, 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Affirmed by unpublished per curiam opinion.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. Graham Tod Green, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Franklin Alexander Mills appeals the sentence imposed
following this court’s remand for resentencing, pursuant to
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (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 On direct appeal, No. 12-
4968, Mills’ counsel filed a 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. 12-
4968 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 error, we must consider the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances.” Id. If the sentence imposed is
below the appropriate Guidelines range, it is presumptively
reasonable. Susi, 674 F.3d at 289. The presumption may be
rebutted by a showing “that the sentence is unreasonable when
measured against the § 3553(a) factors.” United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal
quotation marks omitted). Upon review, we conclude that the
district court committed no procedural or substantive error in
imposing Mills’ sentence on remand. See United States v. Lynn,
592 F.3d 572, 577 (4th Cir. 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).
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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 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 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 Commission . . . if such a reduction is
consistent with applicable policy statements issued by the
3
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).
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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 in granting Mills’ § 3582(c)(2) motion. See
United States v. Munn, 595 F.3d 183, 186 (4th Cir. 2010)
(providing standard of review). Therefore, we affirm the
district court’s order granting a § 3582(c)(2) 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
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