US v. Robert Early

Filing 920100318

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4775 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ROBERT DWAYNE EARLY, a/k/a Dollar Rob, Defendant Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Glen E. Conrad, District Judge. (7:08-cr-00041-gec-3) Submitted: February 25, 2010 Decided: March 18, 2010 Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. John E. Davidson, DAVIDSON & KITZMAN, PLC, Charlottesville, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Donald R. Wolthuis, Assistant United States Attorney, Lanny A. Breuer, Assistant Attorney General, Greg D. Andres, Acting Deputy Assistant Attorney General, Thomas E. Booth, DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury found Robert Dwayne Early guilty of one count of conspiracy to distribute one hundred grams or more of heroin, in violation of 21 U.S.C. 846 (2006), one count of attempted possession with the intent to distribute heroin and two counts of distribution and possession with the intent to distribute heroin, in violation of 21 U.S.C. 841(a)(1), (b)(1)(C) (2006). The district court determined that Early was a career offender under (2008) months U.S. and to Sentencing calculated life Guidelines his Manual ("USSG") 4B1.1(a) at 360 advisory Guidelines range a imprisonment. After imposing downward departure, the district court sentenced Early to 324 months' imprisonment. On appeal, Early contends that the district court Specifically, improperly classified him as a career offender. he asserts that the court improperly counted his 1988 New Jersey conviction for possession with the intent to distribute cocaine, an offense committed when he was seventeen, as a predicate felony for career offender status because he did not receive an adult sentence for that conviction. Finding no error, we affirm. We review the district court's sentence, "whether inside, just outside, or significantly outside the Guidelines range," under a "deferential abuse-of-discretion standard." Gall v. United States, 552 U.S. 38, 41 (2007). 2 In conducting this review, we first examine the sentence to for "significant (or In procedural error," including "failing calculate Id. at 51. the improperly calculating) the Guidelines range." reviewing the we district review court's findings application of fact of Sentencing error and Guidelines, for clear questions of law de novo. United States v. Layton, 564 F.3d 330, 334 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). Section 4B1.1(a) of the Guidelines provides that a defendant is a career offender if, among other conditions, he "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." USSG 4B1.1(a)(3). A "prior felony conviction" is "a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed." n.1 is USSG 4B1.2, cmt. A conviction for an offense committed before age eighteen "an adult conviction the laws if of it the is classified as in an adult the conviction under jurisdiction which defendant was convicted." Id. In this case, when Early was seventeen years old, he was arrested, and law enforcement officials seized seventy vials of cocaine base from him. Although his case was initially assigned to the Family Part of the Superior Court, the state 3 trial court with with an exclusive act of jurisdiction delinquency, where see a juvenile Stat. is charged N.J. Ann. 2A:4A-22(a), :4A-23(a), :4A-24(a) (West 2009), the trial court referred Court, Early's the adult case to the Criminal court Division of of Superior see id. criminal trial record, :4A-26 :4A-27. Under New Jersey law, the effect of such a referral is that the "case shall thereafter proceed in the same manner as if the case had been instituted in that court in the first instance." Id. :4A-28. Early was subsequently indicted and pled guilty in the criminal division to felony possession of a controlled dangerous substance with intent to distribute, in violation (repealed of N.J. Stat. Under Ann. New 24:21-19a(1) law, (West Early 1987) was 1987). Jersey then, convicted as an adult, see United States v. Moorer, 383 F.3d 164, 168-69 (3d Cir. 2004), and the 1988 conviction therefore qualified as an "adult conviction" under USSG 4B1.2, cmt. n.1. * Relying on United States v. Mason, 284 F.3d 555, 561 (4th Cir. 2002) (holding that a conviction for which a juvenile Insofar as Early challenges the career offender designation on the basis that the record fails to disclose whether he or New Jersey moved for the transfer from the family part to the criminal division of the state superior court, Early fails to put forth anything to overcome the presumption of regularity afforded to official proceedings, see, e.g., USPS v. Gregory, 534 U.S. 1, 10 (2001); Koch v. United States, 150 F.2d 762, 763 (4th Cir. 1945). * 4 sentence was imposed could not be a predicate conviction under USSG 4B1.1 (1998)), Early contends the New Jersey conviction cannot serve as a predicate felony for career offender status because he was ordered to serve his sentence at the New Jersey Youth Correctional Institution Complex. However, Early fails to establish that he received a juvenile sentence, as New Jersey law specifically authorizes the confinement of adults less than thirty-one years of age at that facility. 30:4-147 (West 2009). See N.J. Stat. Ann. Moreover, Mason is inapposite, as that case involved a West Virginia sentencing scheme that permits a defendant under eighteen who is convicted as an adult to be sentenced as a juvenile, see Mason, 284 F.3d at 561-62. New Jersey, by contrast, has no similar scheme, see Moorer, 383 F.3d at 168-69. Accordingly, we conclude that the district court did not commit procedural Early of error in no sentencing challenge and we Early to the as a career offender. raises his substantive affirm the reasonableness sentence, therefore judgment of the district court. We dispense with oral argument because the facts and 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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