US v. Leroy Darity


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00013-MR-4 Copies to all parties and the district court/agency. [998458751] [09-5045]

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US v. Leroy Darity Doc. 0 Case: 09-5045 Document: 61 Date Filed: 11/03/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5045 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEROY DEANGELO DARITY, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:09-cr-00013-MR-4) Submitted: September 27, 2010 Decided: November 3, 2010 Before GREGORY, AGEE, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. Case: 09-5045 Document: 61 Date Filed: 11/03/2010 Page: 2 PER CURIAM: Leroy Deangelo Darity appeals his conviction and 188 month intent sentence to for one count of base conspiracy in to possess of 21 with distribute cocaine violation U.S.C. 841(a)(1), 846 (2006). Darity, who was sentenced as a career offender, argues that the district court erred in concluding that he could not collaterally attack three predicate 1993 North Carolina drug convictions, We affirm. is reviewed for reasonableness under an and accordingly, his sentence was unreasonable. A sentence abuse of discretion standard. 38, 51 (2007). Gall v. United States, 552 U.S. This review requires consideration of both the Id.; procedural and substantive reasonableness of a sentence. see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After determining whether the district court properly calculated the defendant's advisory guideline range, this court must decide whether the district court considered the 18 U.S.C. 3553(a) (2006) factors, analyzed the arguments presented by the parties, and sufficiently explained the selected sentence. Lynn, 592 F.3d at 575-76; see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) assessment need (holding not be that, elaborate while or the "individualized ... it must lengthy, provide a rationale tailored to the particular case . . . and [be] adequate to permit meaningful appellate review"). 2 Properly Case: 09-5045 Document: 61 Date Filed: 11/03/2010 Page: 3 preserved claims of procedural error are subject to harmless error review. Lynn, 592 F.3d at 576. Darity's claim is based in part on Lynn v. West, 134 F.3d 582 (4th Cir. 1998). In that case, we held that North Carolina's controlled substance tax ("Drug Tax") (as it existed prior to 1995) was a criminal penalty, rather than a civil one, and concluded that certain constitutional protections, including the Double Jeopardy Clause, must attach to the imposition of the tax. 134 F.3d at 588. Darity claims that because he paid the tax in 1993, and was convicted of offenses arising out of the same conduct, his convictions may not be considered in determining whether he is a career offender. The merits of his claim aside, Darity may not now seek to collaterally attack his prior convictions to prevent the imposition of a career offender enhancement. Guidelines: According to the Sentences resulting from convictions that (A) have been reversed or vacated because of errors of law or because of subsequently-discovered evidence exonerating the defendant, or (B) have been ruled constitutionally invalid in a prior case are not to be counted. With respect to the current sentencing proceeding, this guideline and commentary do not confer upon the defendant any right to attack collaterally a prior conviction or sentence beyond any such rights otherwise recognized in law (e.g., 21 U.S.C. 851 expressly provides that a defendant may collaterally attack certain prior convictions). 3 Case: 09-5045 Document: 61 Date Filed: 11/03/2010 Page: 4 U.S. Sentencing Guidelines Manual 4A1.2 n.6 (2009). The plain language of the Guidelines forecloses Darity's attack on his 1993 convictions. at least in to the the Furthermore, the Supreme Court has held that, context Armed of a challenge Criminal to Act, an enhancement is no pursuant Career there constitutional right to collaterally attack a prior conviction, with the exception of those convictions that were obtained in violation of the right to counsel. See Custis v. United States, 511 U.S. 485, 494-95 (1994); see also United States v. Bacon, 94 F.3d 158, 163 (4th Cir. 1996) (extending Custis to challenges to Guidelines calculations). Taken together, Custis and USSG 4A1.2 stand for the proposition that "absent an allegation that the defendant was denied counsel in the prior proceeding, a district collateral sentence court sentencing on the a a defendant conviction may not to entertain enhance a the attack prior used by unless attack is recognized law." United States v. Longstreet, 603 F.3d 273, 277 n.3 (5th Cir. 2010); see Bacon, 94 F.3d at 161-64. Accordingly, we conclude that the district court did not err in calculating Darity's Guidelines range, and the sentence was not procedurally unreasonable. the district court's judgment. We therefore affirm We dispense with oral argument because the facts and legal contentions are adequately presented 4 Case: 09-5045 Document: 61 Date Filed: 11/03/2010 Page: 5 in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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