US v. Karl Butler

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:11-cr-00329-D-1. Copies to all parties and the district court/agency. [999017216]. [12-4352]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4352

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KARL ANTHONY BUTLER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever, III,
Chief District Judge. (5:11-cr-00329-D-1)

Submitted:

December 18, 2012

Decided:

January 8, 2013

Before AGEE, KEENAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Steven R. Kiersh, KIERSH LAW OFFICE, Washington, D.C., for
Appellant.
Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Karl Anthony Butler pled guilty to possession of a
firearm

by

a

convicted

§ 922(g)(1) (2006).
armed

career

upwardly

in

violation

of

18

U.S.C.

The district court designated Butler an

criminal,

departed

felon,

18

from

U.S.C.

the

§ 924(e)

Guidelines

(2006),

and

established

in

also
the

presentence investigation report (“PSR”) on account of Butler’s
extensive criminal history.

The district court sentenced Butler

to 240 months in prison.

Butler appeals, asserting that the

district

court

criminal.

erred

by

sentencing

him

as

an

armed

career

Finding no error, we affirm Butler’s sentence.
In the presentence investigation report (“PSR”), the

probation officer recommended that Butler be sentenced as an
armed career criminal as defined in U.S. Sentencing Guidelines
Manual § 4B1.4(a) (2011), finding that Butler had at least three
prior
felony

crimes

of

common

law

possession

with

sentencing,

in

departure,

robbery

intent
opposing

counsel

designation
affirmatively
designation

violence—namely,

as

for

an

and

prior

convictions

and

one

conviction

to

sell

and

deliver

the

district

Butler

armed

asserted

five

career

that

mandatory

did

the
minimum

court’s
not

2

cocaine.

object

to

and

career

sentence

reflected Butler’s prior criminal history.

felony

proposed

criminal,
armed

for

for

At
upward

Butler’s
in

fact

criminal

appropriately

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On

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appeal,

Butler

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first

asserts

that

the

district

court erroneously categorized him as an armed career criminal.
Specifically, Butler contends that the offense of common law
robbery,
offense

as
for

(“ACCA”).

defined

in

North

Carolina,

is

enhancement

under

the

Career

Armed

not

a

predicate

Criminal

Act

In addition, Butler argues that his prior convictions

from more than fifteen years ago were improperly considered as
predicate offenses under the ACCA.
that

the

court

improperly

Butler therefore contends

classified

him

as

an

armed

career

criminal.
The Government argues that Butler waived his challenge
to the armed career criminal designation and, in any event, did
not demonstrate that his sentence should be vacated under plain
error review.

We agree with the Government that Butler has

waived any challenge to the armed career criminal designation.
“[W]aiver is the intentional relinquishment or abandonment of a
known

right,”

and

extinguishes

potential

error.

United

States v. Olano, 507 U.S. 725, 733-34 (1993) (internal quotation
marks omitted).

“When a claim of . . . error has been waived,

it is not reviewable on appeal.”

United States v. Claridy, 601

F.3d 276, 284 n.2 (4th Cir.), cert. denied, 131 S. Ct. 259
(2010).
Here, Butler, through counsel, failed to object, in
the

PSR

or

at

sentencing,

to
3

his

armed

career

criminal

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designation.

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More significantly, in arguing against an upward

departure, counsel concurred that Butler was properly classified
as an armed career criminal, stating, “We think the Guidelines
sentencing

with

the

armed

career

criminal

is

an

appropriate

level for what he has done, what he’s been convicted of,” and
“The base offense level that he got for armed career criminal
has taken into account his record . . . .”

We conclude that

counsel’s statements at sentencing constitute a waiver of the
issue, and therefore, we decline to review his claims for error—
plain or otherwise.

See Olano, 507 U.S. at 733; Claridy, 601

F.3d at 284 n.2. *
We

also

reject

Butler’s

claim

that

his

convictions

from more than fifteen years ago were improperly considered in
determining his ACCA status.
F.3d

64,

69-70

(4th

Cir.

In United States v. Presley, 52

1995),

we

held

that

there

is

no

temporal restriction on prior felony offenses for purposes of
the ACCA.
all

of

Presley, 52 F.3d at 69-70.

Butler’s

common

law

robbery

*

Therefore, the fact that
convictions

were

fifteen

Butler here is “deemed bound by the acts of his
lawyer-agent.”
New York v. Hill, 528 U.S. 110, 114-15 (2000)
(internal quotation marks omitted).
Further, even if the law
were otherwise, it is quite clear that the district court did
not commit plain error in relying on Butler’s predicate
convictions to sentence him as an armed career criminal.

4

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years old or older at the time of Butler’s sentencing is of no
legal significance.
Accordingly, we affirm the district court’s judgment.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

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