US v. Nicholas Stallard

Filing 920090313

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4113 UNITED STATES OF AMERICA, Plaintiff Appellee, v. NICHOLAS EMORY STALLARD, Defendant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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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