US v. Michael Davis

Filing 920081212

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4249 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL KENTA DAVIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:07-cr-00086-1) Submitted: November 19, 2008 Decided: December 12, 2008 Before KING, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Banumathi Rangarajan, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Kenta Davis appeals the 300-month sentence the district court imposed after he pled guilty to possession with intent to distribute more than 50 grams of cocaine base, on or about April 30, 2007, in violation of 21 U.S.C. 841(a)(1) (2006). Davis argues that the district court erred in sentencing him as a career offender pursuant to U.S. Sentencing Guidelines Manual ("USSG") 4B1.1. The enhancement was based, in part, upon two convictions that Davis received in 2006: (1) a conviction in Maryland state court for possession with intent to distribute marijuana, for which Davis failed to appear for sentencing, resulting in issuance of a bench warrant for his arrest; and (2) a conviction in South Carolina state court for possession with intent to distribute marijuana, for which he was sentenced suspended, to and three 30 years' months' imprisonment, probation. He all of which that was the contends convictions in 2006 did not disrupt his ongoing criminal conduct because he was never imprisoned for them, and because he was never sentenced for the conviction in Maryland and could still move to withdraw his guilty plea prior to sentencing. Accordingly, he avers the state convictions did not constitute prior convictions under the Guidelines but rather relevant conduct associated with his federal offense. 2 In assessing whether a district court properly applied the Guidelines, we review the lower court's factual findings for clear error and its legal conclusions de novo. Chacon, 533 F.3d 250, 253 (4th Cir. 2008). United States v. The provisions of USSG 4A1.2 are applicable to the counting of prior convictions for career offender purposes. `prior sentence' means any USSG 4B1.1 cmt. n.3. "The term sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense." USSG 4A1.2(a)(1) (emphasis added). The term "sentence of imprisonment" is separately defined in USSG 4A1.2(b). Conduct relevant conduct cmt. is part of the instant section offense 1B1.3. if See it is under n.1. guideline Under acts USSG 4A1.2(a)(1) relevant guideline that were section part 1B1.3(a)(2), of the "same conduct includes course of conduct or common scheme or plan" as the offense of conviction when the offenses are the type which would be grouped under 3D1.2(d). However, as noted by Application Note 8 to USSG 1B1.3, "offense conduct associated with a sentence that was imposed prior to the acts or omissions of of constituting is the not instant federal as offense of (the the offense course conviction) conduct or considered part same common scheme or plan as the offense of conviction." When a defendant has been convicted of an offense, but not yet sentenced, the 3 conviction shall be countable if a sentence resulting from that conviction 4A1.2(a)(4). this otherwise would be countable. See USSG A defendant is "convicted of an offense" under when guilt has been established, Id. did not err in whether by provision guilty plea, trial, or plea of nolo contendere. We sentencing convictions "sentence conviction history. by guilty hold that as a the district offender court based do in a not Davis in career The upon his prior that a 2006. guidelines be as imposed part of require for a of to imprisonment" be counted order prior defendant's criminal An offense for which a defendant has been convicted, plea be or otherwise, for but not yet of sentenced, determining may the nonetheless counted purposes defendant's criminal history. The guidelines do not indicate that counting a prior conviction resulting from a guilty plea can be impacted by the possibility of withdrawing the plea. Moreover, we note that the state offenses at issue each occurred in different states from each other and from the federal offense, and were separated in time from the federal offense by eleven months and eighteen months, respectively. Accordingly, the district court properly viewed the state offenses as prior offenses rather than relevant conduct associated with the federal offense. 4 We therefore affirm the district court's judgment. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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