US v. Michael Davis

Filing 920081212

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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