                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4044



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


JOHN D. COTTINGHAM, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:07-cr-00340-RBH-1)


Submitted:   September 15, 2008           Decided:   November 4, 2008


Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant.   William E. Day, II,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                 On June 22, 2007, John Cottingham pled guilty to one

count       of   failure     to   collect    and    pay    over   payroll    taxes,   in

violation of 26 U.S.C. § 7201 (2000) (Count One) and one count of

tax evasion for failure to pay over payroll taxes, in violation of

26    U.S.C.      §   7202   (2000)    (Count      Seventeen).      At     Cottingham’s

sentencing hearing, the district court granted Cottingham’s request

for a variance and reduced Cottingham’s offense level from offense

level 15 to offense level 12.               In conformity with Cottingham’s new

advisory guidelines range, the district court sentenced Cottingham

to six months’ imprisonment on Counts One and Seventeen, to run

concurrently, and one year of supervised release.                        The district

court also ordered that Cottingham spend the first ten months of

his    supervised       release       on    home    confinement     with     electronic

monitoring and that he pay $277,574 in restitution.

                 Cottingham       timely    noted    his    appeal.         On   appeal,

Cottingham has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967).*            In his Anders brief, Cottingham has presented

for review whether his plea was valid under Federal Rule of

Criminal Procedure 11 and whether his sentence was reasonable.

                 Cottingham’s guilty plea hearing fully complied with the

requirements of Rule 11.              At the outset of Cottingham’s hearing,



        *
      Cottingham was informed of his right to file a pro se
supplemental brief. He has elected not to do so.

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the district court personally addressed Cottingham, placed him

under oath, and made certain he understood the penalties for

perjury should he knowingly make a false statement during his

colloquy.    The court then determined Cottingham was sober and

competent to enter a guilty plea.

            Prior to accepting Cottingham’s guilty plea, the district

court explained to Cottingham federal sentencing, including the

advisory    nature   of   the   guidelines,   supervised   release,   the

abolishment of parole, and the mandatory special assessment.          The

court then ensured Cottingham understood that by pleading guilty he

was waiving his right to plead not guilty, to a trial by jury, to

the assistance of counsel, to confront and cross-examine adverse

witnesses, to present evidence on his own behalf, to refuse to

testify, to compel the attendance of witnesses, and to be presumed

innocent unless the Government should prove him guilty beyond a

reasonable doubt.

            Also, the district court read into the record Counts One

and Seventeen of the indictment and the possible penalties for each

charge, and Cottingham stated he understood the elements of the

offenses and the maximum possible penalties he faced.        Cottingham

indicated that he was pleading guilty freely and voluntarily and

that he was completely satisfied with his lawyer’s representation

of him.    The district court conducted a thorough Rule 11 hearing,




                                     3
and   consequently,    Cottingham’s       guilty   plea   was    knowing   and

voluntary.

           Additionally,    Cottingham’s       sentence    was    reasonable.

Following United States v. Booker, 543 U.S. 220 (2005), a district

court must engage in a multi-step process at sentencing. First, it

must calculate the appropriate guidelines range.                 It must then

consider the resulting range in conjunction with the factors set

forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) and

determine an appropriate sentence.

             Appellate review of a district court’s imposition of a

sentence is for abuse of discretion.        Gall v. United States, 128 S.

Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007).     The appellate court must first ensure

that the district court committed no procedural error, such as

failing to calculate (or improperly calculating) the guidelines

range, treating the guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence - including an explanation for any deviation from the

guidelines range.     Gall, 128 S. Ct. at 597.

             If there are no procedural errors, the appellate court

then considers the substantive reasonableness of the sentence. Id.

A substantive reasonableness review entails taking into account the

totality of the circumstances, including the extent of any variance


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from the Guidelines range. Pauley, 511 F.3d at 473 (quotations and

citation omitted).   While the court may presume a sentence within

the guidelines range to be reasonable, it may not presume a

sentence outside the range to be unreasonable.        Id.   Moreover, it

must give due deference to the district court’s decision that the

§ 3553(a) factors justify imposing a variant sentence and to its

determination regarding the extent of any variance.          Even if the

reviewing court would have reached a different sentence result on

its own, this fact alone is insufficient to justify reversal of the

district court.   Id. at 474.

          Here, the district court did not commit procedural error

in sentencing Cottingham.       First, the district court properly

calculated Cottingham’s advisory guidelines range.          Based on the

tax loss as stipulated by the parties, Cottingham had a base

offense level of 18, which was properly reduced three levels

pursuant to U.S.S.G. § 3E1.1.       The district court then granted

Cottingham’s request for a variance and reduced Cottingham’s base

offense level three additional levels, resulting in an advisory

guidelines range of 10-16 months’ imprisonment.         As Cottingham’s

offense level fell within Zone C of the Sentencing Table, the

district court acted within its discretion by sentencing him to six

months’ imprisonment followed by ten months of home detention with

electronic   monitoring.     U.S.       Sentencing   Guidelines   Manual

§ 5C1.1(d). Additionally, prior to imposing sentence, the district


                                    5
court heard the arguments of counsel and Cottingham’s allocution

and specifically considered the advisory nature of the guidelines

and the § 3553(a) factors.        Finally, the district court provided a

reasoned    explanation     for   granting    Cottingham’s    request       for    a

variance.      Accordingly,       the   district     court   did     not    commit

procedural error in sentencing Cottingham.

            Additionally, Cottingham’s sentence was substantively

reasonable.    In granting Cottingham’s request for a variance, the

district court properly considered Cottingham’s age, his long

history of health problems, his lack of a prior criminal record,

the extent of Cottingham’s community service, and the outpouring of

support for Cottingham.       The district court balanced these facts

against the facts that his offense continued for an extended period

of time and that, as of the date of sentencing, Cottingham had paid

nothing    towards    restitution.          The   district   court    concluded

Cottingham’s sentence would reflect the seriousness of his offense,

promote respect for the law, and provide for just punishment.                  The

record does not indicate the district court abused its discretion.

            In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.                        We

therefore    affirm   the   district     court’s    judgment.        This    court

requires that counsel inform Cottingham, in writing, of the right

to petition the Supreme Court of the United States for further

review.     If Cottingham requests that a petition be filed, but


                                        6
counsel believes that such a petition would be frivolous, then

counsel   may   move   in   this   court   for   leave   to   withdraw   from

representation.    Counsel’s motion must state that a copy thereof

was served on Cottingham.

           We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                                   AFFIRMED




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