US v. Mark Coulter

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for leave to file [999641859-2], denying Motion for leave to file [999484176-2] Originating case number: 1:12-cr-00603-JKB-1. Copies to all parties and the district court/agency. [999877892]. [14-4271]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4271

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK EDWARD COULTER,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge. (1:12cr-00603-JKB-1)

Submitted:

November 24, 2015

Decided:

July 5, 2016

Before NIEMEYER, KEENAN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Sicilia Chinn Englert, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney, Ayn B.
Ducao, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Mark Edward Coulter pled guilty to one count of bank robbery,
in violation of 18 U.S.C. § 2113(a), (d), and (f) (2012), and one
count

of

attempted

§ 2113(a) and (f).

bank

robbery,

in

violation

of

18

U.S.C.

After determining that Coulter qualified as a

career offender, the district court sentenced him to 210 months’
imprisonment.
The career offender sentencing enhancement applies if the
defendant is at least 18 years old at the time of commission of
the offense for which he is being sentenced and the instant offense
is either a crime of violence or a controlled substance offense,
and the defendant has at least two prior convictions that qualify
as either a crime of violence or a controlled substance offense.
U.S. Sentencing Guidelines Manual § 4B1.1(a) (2012).

At the time

of Coulter’s sentencing, a crime of violence was defined to include
any offense that is punishable by more than one year and “has as
an element the use, attempted use, or threatened use of physical
force against the person of another, or (2) is burglary of a
dwelling, arson, or extortion, involves the use of explosives, or
otherwise involves conduct that presents a serious potential risk
of physical injury to another.”

USSG § 4B1.2(a).

While Coulter’s appeal was pending, the Supreme Court, in
Johnson v. United States, 135 S. Ct. 2551 (2015), ruled that the
residual clause of the Armed Career Criminal Act (“ACCA”), 18
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U.S.C. § 924(e)(2)(B)(ii) (2012) (“or otherwise involved conduct
that presents a serious potential risk of physical injury to
another”) is unconstitutionally vague. * In light of this decision,
Coulter argues, and the Government concedes, that Coulter no longer
qualifies as a career offender.
The Government contends, however, that any error by the
district court in sentencing Coulter to 210 months is harmless
because the district court asserted at sentencing that, even if
Coulter did not qualify as a career offender, it would have imposed
the same sentence based on its consideration of the sentencing
factors,

18

U.S.C.

§ 3553(a)

(2012).

Procedural

errors

sentencing are “routinely subject to harmlessness review.”

at

United

States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011); see
Puckett v. United States, 556 U.S. 129, 141 (2009).
“‘[A]ssumed harmlessness inquiry’ requires (1) ‘knowledge
that the district court would have reached the same result even if
it had decided the guidelines issue the other way,’ and (2) ‘a

*

“The ACCA defines ‘violent felony’ in a manner substantively
identical to the definition of a ‘crime of violence’ in § 4B1.2 of
the Guidelines.” United States v. Jarmon, 596 F.3d 228, 231 n.*
(4th Cir. 2010). This court has not yet determined whether the
holding in Johnson similarly invalidates the residual clause in
USSG § 4B1.2(a)(2). But see In re Hubbard, No. 15-276, 2016 WL
3181417 (4th Cir. June 8, 2016) (concluding that Hubbard made a
prima facie showing that the Supreme Court’s decision in Johnson
could apply to 18 U.S.C. § 16(b)). Our decision in Hubbard does
not affect the harmless error analysis in the present case.
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determination that the sentence would be reasonable even if the
guidelines issue had been decided in the defendant’s favor.’”
United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014).
The error will be deemed harmless only when the Court is “certain”
of these two factors.
(4th Cir. 2012).

United States v. Gomez, 690 F.3d 194, 203

Because the district court stated that it would

have imposed the same sentence as an upward variance even if
Coulter were not a career offender, we find that the first prong
of the harmlessness inquiry is satisfied.
We “review all sentences—whether inside, just outside, or
significantly outside the Guidelines range—under a deferential
abuse-of-discretion standard.”
38, 41 (2007).

Gall v. United States, 552 U.S.

We review the substantive reasonableness of a

sentence, considering “the totality of the circumstances to see
whether the sentencing court abused its discretion in concluding
that the sentence it chose satisfie[s] the standards set forth in
§ 3553(a).”

Gomez-Jimenez, 750 F.3d at 382. When the district

court imposes a variance sentence, this court considers “whether
the sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the extent
of the divergence from the sentencing range.”

United States v.

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007).
In

determining

Coulter’s

sentence,

the

district

court

expressly considered his history and characteristics—including his
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numerous prior convictions, the nature and circumstances of the
offenses of conviction, the seriousness of the offenses, the need
to promote respect for the law, and the need to provide punishment.
The court determined that there was a great need for deterrence,
which had not been met by the short sentences Coulter had received
for prior convictions.
protect

the

public,

The court also emphasized the need to
opining

that

Coulter

was

“profoundly

dangerous.”
After considering all of the § 3553(a) factors, the district
court determined that a 210-month sentence was appropriate.

The

court noted that, “even if I were to compute the [G]uidelines in
such a way as to conclude that the defendant was not a career
offender, I would nonetheless impose a sentence of 210 months of
incarceration in this case because of . . . my conclusion that
this defendant is profoundly dangerous.”

In light of the district

court’s thorough consideration of the sentencing factors and its
individualized

assessment

of

the

factors

as

they

related

to

Coulter, we conclude that the 210-month upward variant sentence is
reasonable and that any error by the district court in concluding,
pre-Johnson, that Coulter was a career offender, is harmless.

See

Gomez-Jimenez, 750 F.3d at 382.
Accordingly, we affirm the judgment of the district court.
We deny Coulter’s motions for leave to file a pro se supplemental
brief and an amended supplemental pro se brief.
5

See United

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States v. Penniegraft, 641 F.3d 566, 569 n.1 (4th Cir. 2011).

We

dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before this court and
argument would not aid the decisional process.

AFFIRMED

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