IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30133

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

F I L E D

November 29, 2011

Lyle W. Cayce

Clerk

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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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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