US v. Chadney Stanback

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00013-1. Copies to all parties and the district court/agency. [998686863]. [10-5065]

Appeal: 10-5065

Document: 26

Date Filed: 09/27/2011

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5065

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHADNEY STANBACK,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield.
Irene C. Berger,
District Judge. (1:10-cr-00013-1)

Submitted:

September 15, 2011

Decided:

September 27, 2011

Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant.
R. Booth
Goodwin II, United States Attorney, Miller Bushong, Assistant
United States Attorney, Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 10-5065

Document: 26

Date Filed: 09/27/2011

Page: 2 of 3

PER CURIAM:
Chadney Stanback appeals his ninety-six month sentence
for possession with intent to distribute a quantity of cocaine
base in violation of 21 U.S.C. § 841(a)(1) (2006).

Stanback

argues that his sentence was procedurally unreasonable because
the district court erred in calculating his Guidelines sentence
by finding that he was a career offender under U.S. Sentencing
Guidelines Manual (“USSG”) § 4B1.1(a) (2009).
procedurally
calculated

unreasonable
the

if

offender’s

the

district

Guidelines

range

A sentence is
court
of

improperly

imprisonment.

United States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010).
Stanback claims that he was not a career offender for
purposes of USSG § 4B1.1(a) because he did not possess two prior
felony convictions of either a crime of violence or a controlled
substance offense.

Predicate convictions for career offender

status only encompass offenses punishable by imprisonment for a
term exceeding one year.
that

the

district

court

USSG § 4B1.2(a), (b).
erred

in

treating

Stanback claims
his

2009

North

Carolina state conviction for possession with intent to sell
cocaine as a predicate conviction.
We

conclude

that,

under

North

Carolina’s

structured

sentencing regime and in light of Stanback’s criminal history,
he could not have received a custodial sentence of more than one
year for his 2009 cocaine offense.
2

When Stanback raised this

Appeal: 10-5065

Document: 26

argument

in

the

Date Filed: 09/27/2011

district

court,

it

Page: 3 of 3

was

foreclosed

by

our

decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005).
Subsequently,
decision

in

however,
United

we

States

overruled
v.

Harp

Simmons,

with

__

3607266 (4th Cir. Aug. 17, 2011) (en banc).

F.3d

our

en

banc

__,

2011

WL

Pursuant to the

dictates of Simmons, we sustain Stanback’s objection here.
Accordingly, the district court’s judgment is affirmed
as to the conviction, vacated as to the sentence, and the case
is remanded for resentencing.

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 in
the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

3