US v. Julie Stewart

Filing 920100618

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4690

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JULIE RENEE STEWART, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:08-cr-00219-TDS-2)

Submitted:

May 28, 2010

Decided:

June 18, 2010

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John D. Bryson, WYATT EARLY HARRIS & WHEELER, LLP, High Point, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Randall S. Galyon, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Julie possess Renee Stewart for pled the §§ guilty purpose to of 846 of conspiracy to

pseudoephedrine 21

manufacturing (West fifty 1999 &

methamphetamine, Supp. 2010),

U.S.C.A.

841(c)(2), to a term

and

was

sentenced

months

imprisonment. 1

Stewart contends

on appeal that

the district

court incorrectly calculated her criminal history by adding her probation revocation sentence to her original suspended sentence of imprisonment, USSG §§ 4A1.1(b), 4A1.2(a)(1), (k). In the presentence report, Stewart We affirm. two

received

criminal history points under USSG § 4A1.1(b) for the sentences she received for two misdemeanors on March 15, 2001. first misdemeanor and conviction, for the Stewart received she For the 20 days a

imprisonment,

second

conviction

received

suspended 45-day sentence and two years of supervised probation. Stewart's probation was revoked in 2003 and the 45-day sentence was activated. The probation officer counted the combined Stewart

sentence of 65 days imprisonment as a single sentence.

objected that the 20-day sentence and the 45-day sentence should be counted separately and that each should be assigned one

Stewart's advisory guideline range was 84-105 months. The district court departed downward for substantial assistance, on the government's motion, pursuant to U.S. Sentencing Guidelines Manual § 5K1.1, p.s. (2008).

1

2

criminal

history

point

under

§ 4A1.1(c).

Because

only

four

criminal history points may be awarded under § 4A1.1(c), and Stewart had more than four other sentences which each rated one point under subsection (c), the change would have had the effect of reducing her actual criminal history score by two points and lowering her criminal history category from IV to III. The probation officer responded that § 4A1.2(a)(2)(B) currently provides that prior sentences imposed on the same day, or for offenses charged in the same document, are counted as a single sentence if there was no intervening arrest. The

probation officer also relied on § 4A1.2(k)(1), which directs: "In the case of a prior revocation of probation . . . add the original term of imprisonment to any term of imprisonment

imposed upon revocation [and] . . . [use] the resulting total . . . to compute the criminal history points for § 4A1.1(a), (b), or (c), as applicable." At the sentencing hearing, Stewart argued that the two misdemeanors were separately charged and that her 20-day

sentence and 45-day sentence were imposed on different dates. In support of the latter argument, Stewart relied on language in United States v. Romary, 246 F.3d 339 (4th Cir. 2001), a case in which the issue was whether a defendant qualified for sentencing as a career offender when one of his predicate sentences--a

suspended 10-year sentence--came within the 15-year applicable 3

time

period

by

virtue

of

the

fact

that

his

probation

was

subsequently revoked and the sentence activated.

In considering

the issue, this court in Romary at one point referred to the suspended sentence as "the original sentence" and the probation revocation sentence as "the second sentence." The district court rejected Stewart's objection,

finding that the prior sentences were imposed on the same day and that the revocation sentence was properly treated as part of the original sentence under USSG § 4A1.2(k)(1) and Application Note 11. The court observed that Romary was consistent with the

current guidelines when it stated that post-conviction penalties were attributable to the original conviction on constitutional grounds. On appeal, Stewart renews her argument that the two prior sentences should have been counted separately because the offenses were not charged in the same charging instrument, and her 20-day sentence was not imposed on the same day as her 45day revocation sentence. 2 A sentence is reviewed for

reasonableness under an abuse of discretion standard. United States, 552 U.S. 38, 51 (2007).

Gall v.

Stewart does not argue separated the two offenses.

2

that

an

intervening

arrest

4

As

the

district

court

found,

§ 4A1.2(k)(1)

requires

the court to treat a revocation sentence as part of the original sentence. Stewart first argues that § 4A1.2(k)(1) does not

require the 45-day revocation sentence she received in 01-CR50845 be added to the 20-day active sentence she had previously received revocation in in 01-CR-50844 because there was the no probation of

01-CR-50844.

However,

language

§ 4A1.2(k)(1) and its commentary is unambiguous, and does not require, when two prior sentences were imposed on the same date, that both entail a later probation violation. again argues that Romary supports her position. The focus in Romary the was whether the date of Second, Stewart It does not. the the revocation applicable

sentence

brought

original

sentence

within

time period to make it countable for career offender purposes, not whether the revocation sentence was part of the original sentence under § 4A1.2(k)(1). court correctly applied the We conclude that the district relevant guidelines, that no

procedural error was committed by the district court, and that the sentence was otherwise reasonable. 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

5

materials

before

the

court

and

argument

would

not

aid

the

decisional process. AFFIRMED

6