     Case: 11-30133     Document: 00511678340         Page: 1     Date Filed: 11/29/2011




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

                                                                            FILED
                                                                        November 29, 2011
                                     No. 11-30133
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PETER COLE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:10-CR-231-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Peter Cole appeals the 63-month sentence he received as a felon in
possession of a firearm. We AFFIRM.
        Cole asserts that the district court violated his Sixth Amendment right to
a jury by imposing an upward variance based upon facts that were not alleged
in the indictment, proven to a jury, or admitted by him. Under the advisory
Guidelines regime, a sentence within the statutory maximum that is based upon
judge-found facts does not violate the Sixth Amendment. United States v.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-30133

Hernandez, 633 F.3d 370, 374 (5th Cir. 2011). There was no violation of the
Sixth Amendment.
      Next Cole asserts that his sentence is procedurally unreasonable because
the district court failed to consider the factors under 18 U.S.C. § 3553(a) and to
provide reasons for rejecting his arguments that he possessed the firearm under
duress, that his incarceration would cause hardship for his newborn son and
fiancée, and that he helped his fiancée overcome her drug addiction. Because he
did not raise this challenge to the procedural reasonableness of his sentence in
the district court, review is for plain error. See United States v. Whitelaw, 580
F.3d 256, 258, 261-62 (5th Cir. 2009).
      The district court indicated that it considered a letter by Cole’s fiancée
that addressed the arguments that Cole possessed the firearm because of threats
he received, that his newborn son and fiancée were dependent upon him, and
that he was instrumental in ending his fiancée’s drug addiction. The court
listened to arguments by defense counsel and to Cole’s allocution. Although the
court did not discuss Cole’s mitigation arguments, it repeatedly emphasized that
his actions in leading police on a high speed chase through a residential area
endangered the lives of many people. The court found “no justification” for Cole’s
actions and concluded that it could not ignore the risk Cole created.
      The district court’s reliance upon Cole’s endangerment of others was
consistent with Section 3553(a)’s instruction to consider “the nature and
circumstances of the offense” and the need for the sentence to “afford adequate
deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(1), (2). Because the court
gave fact-specific reasons for the 63-month sentence that were consistent with
the Section 3553(a) factors, Cole fails to show a clear or obvious error. See
United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).
      Finally, Cole challenges the substantive reasonableness of his sentence.
He asserts that a sentence lacking sufficient reasons is substantively
unreasonable.    However, as we previously determined, the district court

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                                  No. 11-30133

provided sufficient reasons for the sentence. Cole also asserts that his sentence
is substantively unreasonable because it fails to account for his mitigating
arguments and places significant weight on an improper factor, his conduct
during the police chase.
      Cole’s 63-month sentence is outside the applicable 27 to 33 months
Guidelines range.     Although a sentence within the Guidelines range is
presumptively reasonable, we do not apply a presumption of unreasonableness
to a sentence outside the Guidelines range. United States v. Conn, 657 F.3d 280,
286 (5th Cir. 2011) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). This
court considers the “totality of the circumstances, including the extent of any
variance from the guidelines range” but must give “deference to the district
court’s determination of the appropriate sentence based on § 3553(a) factors.”
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). Plain error review
applies because Cole did not object in the district court. See United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008).
      Cole fails to show that the district court did not account for his mitigating
arguments or that the arguments should have received substantial weight. The
district court listened to Cole’s mitigating arguments and found them to be
outweighed by the danger created by Cole’s actions during the police chase. The
district court was in the best position to evaluate Cole’s arguments as well as the
Section 3553(a) factors. See Gall, 552 U.S. at 51-52. The district court did not
plainly err in determining that a sentence of 63 months was appropriate in these
circumstances.
      AFFIRMED.




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