United States v. Cole , 84 F. App'x 309 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4486
JEFFREY SCOTT COLE,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, Chief District Judge.
(CR-02-220)
Submitted: November 24, 2003
Decided: December 29, 2003
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
R. Thomas Czarnik, Princeton, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Joshua C. Hanks, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. COLE
OPINION
PER CURIAM:
Jeffrey Scott Cole appeals from the seventy-one month sentence
imposed by the district court following his guilty plea to possession
of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1)
(2000). He argues that the district court erred in determining his crim-
inal history category, USSG § 4A1.1,1 and erred in increasing his
offense level by four upon finding that he possessed the firearm in
connection with another felony, USSG § 2K2.1(b)(5). Finding no
reversible error, we affirm Cole’s sentence.
Cole argues that the sentencing court erred in determining that his
sentence on his prior state charges of burglary and driving while
under the influence ("DUI") exceeded one year and one month and
therefore awarding three criminal history points under USSG
§ 4A1.1(a), rather than two points under § 4A1.1(b).2 Cole asserts that
his total sentence on those offenses was seven months, seventeen
days.
Cole’s failure to object to this sentencing issue in the district court
amounts to a waiver of his right to raise the issue on appeal, absent
plain error.3 United States v. Ford, 88 F.3d 1350, 1355-56 (4th Cir.
1996); United States v. Grubb, 11 F.3d 426, 440 (4th Cir. 1993). To
consider an issue under the plain error standard, the court must find
that (1) an error was committed, (2) the error was plain, and (3) the
error affected the defendant’s substantial rights. United States v.
Olano, 507 U.S. 725, 732-36 (1993); United States v. Lockhart, 58
F.3d 86, 88 (4th Cir. 1995). Before it will reach an issue, the court
must also determine that failure to address the error will "seriously
1
U.S. Sentencing Guidelines Manual § 4A1.1 (2002).
2
Section 4A1.1(a) adds three criminal history points for "each prior
sentence of imprisonment exceeding one year and one month." USSG
§ 4A1.1(a). Two points are added for "each prior sentence of imprison-
ment of at least sixty days not counted in (a)." USSG § 4A1.1(b).
3
In the district court, Cole challenged the three points, arguing that
because one of the three offenses with which he was charged was dis-
missed, only two points were warranted.
UNITED STATES v. COLE 3
affect the fairness, integrity, or public reputation of judicial proceed-
ings." Olano, 507 U.S. at 736 (quoting United States v. Young, 470
U.S. 1, 15 (1985)).
The state court order imposed sentences for the DUI and burglary
offenses, suspended the sentences, and directed that Cole be assigned
to West Virginia’s youthful offender program, for six months to two
years. The state court further gave Cole credit for seven months and
seventeen days served awaiting sentencing. Less than seven months
later, the state court entered an order noting that Cole had successfully
completed the youthful offender program and placing him on proba-
tion.
We have previously determined that a sentence satisfied by com-
pleting West Virginia’s youthful offender program constitutes a term
of imprisonment, rather than one of probation. United States v.
Adams, 988 F.2d 493, 497 (4th Cir. 1993). Here, although Cole
asserts that he completed the youthful offender program in seven
months and seventeen days, and therefore that is the total length of
his sentence on the DUI and burglary offenses, the record supports a
contrary conclusion. When initially sentencing Cole, the state court
awarded him credit for time served prior to sentencing. The length of
this time was seven months and seventeen days. The time span
between the date of the initial sentencing and referral to the youthful
offender program and the date that the court noted Cole’s completion
of the program and released him to probation is a few days less than
seven months. The sum of these terms of imprisonment exceeds one
year and one month. It is upon this reasoning that the sentencing court
concluded that Cole’s sentence for the DUI and burglary offenses
exceeded one year and one month, and thus three criminal history
points were warranted. Because the record does not show that the dis-
trict court’s determination of his criminal history category was plainly
erroneous, we find that this issue is waived and we decline to address
it. See Olano, 507 U.S. at 732-36 (providing plain error standard);
Ford, 88 F.3d at 1355-56 (discussing waiver).
Cole also argues that the district court erred in increasing his
offense level by four based on its finding that he used the firearm in
connection with the felony offense of malicious wounding. Cole
argues that he fired the weapon in self-defense and to ward off an
4 UNITED STATES v. COLE
attack by the victim. He asserts that he did not commit the offense of
malicious wounding and, in fact, the state charge of malicious wound-
ing was dismissed.
The Sentencing Guidelines provide for a four-level increase if the
firearm was "used or possessed . . . in connection with another felony
offense." USSG § 2K2.1(b)(5). "Felony offense" is defined to mean
"any offense (federal, state, or local) punishable by imprisonment for
a term exceeding one year, whether or not a criminal charge was
brought, or conviction obtained." USSG § 2K2.1, comment. (n.7).
Thus, contrary to Cole’s assertion, the fact that the state charge of
malicious wounding was dismissed does not preclude the federal sen-
tencing court from finding that Cole used the firearm in connection
with the crime of malicious wounding. See id.
Addressing Cole’s self-defense assertion, the district court consid-
ered his account of the incident between Cole and the victim. The
court also noted the location of the shots: one to the victim’s stomach
—which was deflected by the victim’s leather jacket—and one "to the
left shoulder, which did penetrate, hit the back of the shoulder." The
court found that the location of the shot "cuts heavily against the
argument that the defendant here acted in self-defense." We find that
the preponderance of the evidence supports the district court’s conclu-
sion that Cole did "maliciously shoot . . . [a] person . . . with intent
to maim, disfigure, disable or kill." W. Va. Code Ann. § 61-2-9(2000); see United States v. Urrego-Linares, 879 F.2d 1234, 1237-38
(4th Cir. 1989) (providing standard). We therefore find that the four-
level increase to Cole’s offense level was appropriate.
Accordingly, we affirm Cole’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED