United States v. Johnny Lee Cole , 520 F. App'x 920 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15367
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-00021-JEC-ECS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY LEE COLE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(June 3, 2013)
Before BARKETT, HULL, and JORDAN, Circuit Judges.
PER CURIAM:
Johnny Lee Cole appeals his 188-month total sentence, imposed after
pleading guilty to three counts of child pornography distribution, in violation of 18
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U.S.C. § 2252A(a)(2), and one count of child pornography possession, in violation
of 18 U.S.C. § 2252A(a)(5)(B). The district court calculated an advisory
guidelines range of 188 to 235 months’ imprisonment, although owing to a prior
state court conviction for child molestation, Cole faced a statutory minimum term
of 15 years (180 months) and a statutory maximum term of 40 years. 18 U.S.C.
§ 2252A(b)(1). Cole requested a downward variance from the guidelines range to
the statutory minimum of 180 months, which the court rejected before imposing a
low-end total sentence of 188 months. Cole complains on appeal that his total
sentence is substantively unreasonable because the court abused its discretion in
denying his eight-month downward variance request, and the resulting total
sentence is greater than necessary to satisfy the sentencing factors set out in 18
U.S.C. § 3553(a).
We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d
445 (2007). The district court’s denial of a defendant’s request for a variance is
subsumed under that review. See United States v. Willis, 560 F.3d 1246, 1251
(11th Cir. 2009) (reviewing the reasonableness of the district court’s denial of the
defendant’s motion for variance).
After reviewing the record, we find no reversible error. We cannot say that
Cole’s 188-month total sentence is substantively unreasonable. The total sentence
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falls at the low end of the guidelines range and is well below the statutory
maximum. The court’s denial of his request for a downward variance was not a
clear error in judgment, and moreover, the total sentence reflects several of the
§ 3553(a) factors, including the seriousness of the offense conduct, the history and
characteristics of the defendant, and the need to protect the public.
AFFIRMED.
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