UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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). 
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 criminal 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

1U.S. Sentencing Guidelines Manual § 4A1.1 (2002). 

2Section 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 imprisonment 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 dismissed, only two points were warranted. 

2 UNITED STATES v. COLE
affect the fairness, integrity, or public reputation of judicial proceedings." 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 probation. 

We have previously determined that a sentence satisfied by completing 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 district 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

UNITED STATES v. COLE 3
attack by the victim. He asserts that he did not commit the offense of

malicious wounding and, in fact, the state charge of malicious wounding 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 sentencing 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 considered 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 conclusion 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 fourlevel 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 presented in the materials before the court and argument would not aid

the decisional process.

AFFIRMED

4 UNITED STATES v. COLE