US v. Julie Stewart

Filing 920100618

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4690 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JULIE RENEE STEWART, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Stewart's probation was revoked in 2003 and the 45-day sentence was activated.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

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