     Case: 17-50847      Document: 00514592320         Page: 1    Date Filed: 08/09/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                    No. 17-50847
                                                                                FILED
                                                                           August 9, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MACK COLE, also known as Mack Cole, Jr., also known as Mack J. Cole,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CR-79-1


Before BENAVIDES, OWEN, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       A jury found Mack Cole guilty of four counts of health care fraud. He
appeals his within-guidelines sentence of 27 months in prison, asserting that
it is greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a).
Specifically, he contends that the sentence fails to take into account his
distinguished military service, the severe injuries he suffered during that
service, and the difficulties that the Bureau of Prisons will have in continuing


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-50847     Document: 00514592320      Page: 2   Date Filed: 08/09/2018


                                  No. 17-50847

his medical treatment. In addition, Cole argues that the court did not consider
the decreased need for deterrence and protection of the public, given his
advanced age, his lack of criminal history, his family support, and his
compliant comportment during pretrial release. He maintains that a sentence
of probation would be appropriate in light of his personal circumstances.
      As Cole concedes, he did not object to his sentence after it was imposed,
and we therefore review for plain error. See United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007). Cole thus has the burden of showing a forfeited
error that is clear or obvious and that affected his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have the
discretion to correct the error if it seriously affects the integrity, fairness, or
public reputation of judicial proceedings. Id.
      Where, as here, the district court imposes a sentence within a properly
calculated guidelines range, the sentence is entitled to a rebuttable
presumption of reasonableness. United States v. Rashad, 687 F.3d 637, 644
(5th Cir. 2012). “The presumption is rebutted only upon a showing that the
sentence does not account for a factor that should receive significant weight, it
gives significant weight to an irrelevant or improper factor, or it represents a
clear error of judgment in balancing sentencing factors.” United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Cole’s general disagreement with the
propriety of his sentence and the district court’s weighing of the § 3553(a)
factors is insufficient to establish that the district court erred in balancing the
applicable § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 51 (2007).
He has not demonstrated that the district court committed a clear and obvious
error by sentencing him to a within-guidelines sentence of 27 months in prison.
See Puckett, 556 U.S. at 135; Peltier, 505 F.3d at 391-92. Consequently, the
judgment of the district court is AFFIRMED.



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