US v. Nicholas Stallard

Filing 920090313

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4113

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. NICHOLAS EMORY STALLARD, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, Chief District Judge. (1:07-cr-00041-jpj-pms-1)

Submitted:

February 18, 2009

Decided:

March 13, 2009

Before TRAXLER, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Nancy C. Dickenson, Assistant Federal Public Defender, Abingdon, Virginia, for Appellant. Julia C. Dudley, Acting United States Attorney, Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Nicholas Emory Stallard pled guilty to bank robbery, 18 U.S.C. §§ 2113(a), robbery 2 and (2006) to (Count 1), and conspiracy or dispose to of

commit

bank

possess,

conceal,

stolen bank funds, 18 U.S.C. §§ 371, 2113(c) (2006) (Count 3). He received a career offender sentence of 151 months

imprisonment.

U.S. Sentencing Guidelines Manual § 4B1.1 (2007).

Stallard appeals his sentence, arguing that the district court erred in sentencing him as a career offender and in applying the 2007 Guidelines Manual. We affirm.

Stallard previously had been convicted of distributing cocaine in June 1998 in Carroll County, Virginia, and in January 1999 in Grayson County, Virginia. He also had a federal

conviction for possession of a firearm in furtherance of drug trafficking, 18 U.S.C.A. § 924(c) (West 2000 & Supp. 2008), in connection with the January 1999 drug conviction. At

sentencing, Stallard argued unsuccessfully, based on provisions in the 2006 Guidelines Manual, that these offenses should be counted as one offense rather than counted separately. 1 § 4B1.1, to qualify for sentencing as a career Under a

offender,

Under Application Note 3 to § 4B1.1, "[t]he provisions of § 4A1.2 . . . are applicable to the counting of convictions under § 4B1.1." Multiple prior sentences are counted separately unless certain conditions specified in § 4A1.2 are met.

1

2

defendant must have at least two prior convictions for either a drug offense or a crime of violence. 2 The district court noted that it was required to apply the 2007 guidelines in effect at the time of sentencing, 3 that § 4A1.2(a) recently had been amended, 4 and that it currently

provided that prior sentences were counted separately when there was no intervening arrest "unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day." convictions did not meet those conditions. Stallard's prior The court also

stated that, even if the issue were determined under the 2006 guidelines, it would not find that the prior convictions were part of the same course of conduct because they were committed "in different localities," and on "widely separate dates," even though they "involve[d] the same offense." Although court's use of the Stallard 2007 did not question at the district he

Guidelines

Manual

sentencing,

maintains in this appeal that the court's application of the
2

A § 924(c) conviction is a "crime of violence" if the underlying offense was a drug offense. USSG § 4B1.2, comment. (n.1). If the defendant was also convicted of the underlying drug offense (as happened here), the sentences for both prior convictions are counted as a single sentence. Id.
3 4

See USSG § 1B1.11. USSG App. C, amend. 709, eff. Nov. 1, 2007.

3

2007 guidelines violated the Ex Post Facto Clause. 5

Under USSG

§ 1B1.11(b)(1), to calculate the advisory guideline range, the sentencing court must apply the Guidelines Manual in effect on the date of sentencing unless its use would violate the Ex Post Facto Clause, in which case the Guidelines Manual in effect on the date the offense of conviction was committed is applied

instead. 6

Because the district court correctly determined that

Stallard would qualify as a career offender under either the 2006 or the 2007 Guidelines Manual, no ex post facto violation occurred. Stallard was a career offender under the 2007

guidelines because the Carroll County cocaine distribution that he committed in in June 1998, 1999, the and federal the § 924(c) offense he

committed

January

Grayson

County

cocaine

distributions he committed in January 1999 were all charged in

This on appeal, Olano, 507 errors have
6

5

issue, and others Stallard raises for the first time are reviewed for plain error. United States v. U.S. 725, 732-37 (1993). We are satisfied that no been identified in this manner.

We note that a circuit split has developed on the issue of whether, after United States v. Booker, 543 U.S. 220 (2005), the Ex Post Facto Clause no longer applies to the sentencing guidelines because they are now advisory. This court has not decided the issue as yet. See United States v. Myers, 553 F.3d 328, 333 n.2 (4th Cir. 2009). We conclude that the issue need not be addressed in this case.

4

separate indictments, and all three sentences were imposed on different dates. Stallard did not challenge the accuracy of his

criminal record in the district court, but he argues on appeal that the government failed to prove that he was a career

offender because it did not introduce the charging documents for the predicate offenses. hearsay rule does court not may This claim is meritless. apply at sentencing. any relevant USSG First, the § 6A1.3(a) to

(sentencing

consider

information

resolve disputes, "provided that the information has sufficient indicia of reliability to support its probable accuracy"), and the testimony given by the state investigator for the government at sentencing was not erroneous in any significant respect.

Second, Stallard's reliance on Shepard v. United States, 544 U.S. 13 (2005), and its progeny is misplaced. 7 Shepard and the

cases stemming from it have limited, if any, relevance in this case because there was no dispute about the nature of Stallard's prior convictions, only the number countable under § 4A1.2.

Shepard held that, in deciding whether a prior guilty plea was to a violent felony rather than a non-violent offense, the district court could consider only "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." 544 U.S. at 26.

7

5

Stallard's

principal

argument

is

that,

under

Application Note 3 of the 2006 Guidelines Manual, the predicate convictions for his career offender status were related cases and should have been treated as one offense under the test set out in United States v. Breckenridge, 93 F.3d 132 (4th Cir. 1996), for determining whether prior offenses were part of a "single common scheme or plan." To be a career offender under

USSG § 4B1.1, a defendant must have two predicate convictions which are counted separately under USSG § 4A1.1. which of a defendant's prior felony convictions To determine are counted

separately, the 2006 guidelines direct a sentencing court to look to the provisions of § 4A1.2, which treat prior sentences in "related cases" as a single sentence. Application Note 3 to § 4A1.2 explains: considered related if they resulted USSG § 4A1.2(a)(2).

"[p]rior sentences are from offenses that (1)

occurred on the same occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or

sentencing."

We have considered these factors and conclude that

the district court did not err in finding that Stallard's prior offenses were not part of a common scheme or plan. We district facts therefore We affirm the with are sentence oral imposed by the the the

court. legal

dispense

argument

because in

and

contentions

adequately

presented

6

materials

before

the

court

and

argument

would

not

aid

the

decisional process. AFFIRMED

7