US v. Daniel Canter

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:15-cr-00014-JPB-MJA-1 Copies to all parties and the district court/agency. [999976816].. [16-4263]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4263

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL LEE CANTER,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.
John Preston Bailey,
District Judge. (2:15-cr-00014-JPB-MJA-1)

Submitted:

November 22, 2016

Decided:

November 29, 2016

Before WILKINSON and SHEDD, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Brian J. Kornbrath, Federal Public Defender, Kristen M. Leddy,
Research & Writing Specialist, Clarksburg, West Virginia, for
Appellant.
William J. Ihlenfeld, II, United States Attorney,
Stephen D. Warner, Assistant United States Attorney, Elkins, West
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Daniel Lee Canter pled guilty, pursuant to a plea agreement,
to

possession

with

intent

to

distribute

methamphetamine,

in

violation of 21 U.S.C. § 841(a)(1) (2012), and the district court
sentenced him to 188 months’ imprisonment.

On appeal, Canter

contends that the court erred in applying the enhancement under
U.S.

Sentencing

Guidelines

Manual

§ 2D1.1(b)(1)

(2015)

for

possession of a firearm and in calculating his criminal history
category.
We

We affirm.
review

a

sentence

for

procedural

and

substantive

reasonableness under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Berry, 814 F.3d 192, 194-95 (4th Cir. 2016).

In determining

whether a sentence is procedurally reasonable, we consider, among
other factors, whether the district court properly calculated the
defendant’s advisory Sentencing Guidelines range.
at 51.

Gall, 552 U.S.

In evaluating a district court's application of the

Guidelines, we review the court’s factual findings for clear error
and its legal conclusions de novo.
305, 308 (4th Cir. 2014).

United States v. Cox, 744 F.3d

“Clear error occurs when the reviewing

court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.”
and internal quotation marks omitted).

2

Id. (alteration

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We first address Canter’s challenge to the district court’s
application of the two-level enhancement under § 2D1.1(b)(1) for
possession of a firearm.

This enhancement is appropriate if a

firearm was possessed “during the relevant illegal drug activity.”
United States v. Slade, 631 F.3d 185, 188 (4th Cir. 2011) (internal
quotation marks omitted).

As the district court observed, the

enhancement “reflects the increased danger of violence when drug
traffickers

possess

weapons”

and

applies

“if

the

weapon

was

present, unless it is clearly improbable that the weapon was
connected with the offense.”

USSG § 2D1.1 cmt. n.11(A).

“It is

the defendant’s burden to show that a connection between his
possession of a firearm and his narcotic offense is ‘clearly
improbable.’”

Slade, 631 F.3d at 189.

We conclude that Canter has not met the burden of showing
that it was clearly improbable that the shotgun discovered in his
vehicle near a safe containing methamphetamine and a significant
quantity of cash was connected to the drug-trafficking offense.
Accordingly, the court properly applied the two-level enhancement
for possession of a firearm.

See United States v. Harris, 128

F.3d 850, 852 (4th Cir. 1997) (holding “that the proximity of guns
to illicit narcotics can support a district court’s enhancement of
a defendant’s sentence under Section 2D1.1(b)(1)”).
Next, we turn to Canter’s challenge to the district court’s
calculation of his criminal history category.
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Section 4B1.1(b)

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instructs courts to calculate offense levels for career offenders,
like Canter, as follows: “Except as provided in subsection (c), if
the offense level for a career offender from the table in this
subsection is greater than the offense level otherwise applicable,
the offense level from the table in this subsection shall apply.”
USSG

§ 4B1.1(b).

Subsection

(c)

provides

an

alternative

sentencing scheme for those career offenders who are convicted
under 18 U.S.C. § 924(c) (2012) and 18 U.S.C. § 929(a) (2012).
USSG § 4B1.1(c).

Section 4B1.1(b) also provides that “[a] career

offender's criminal history category in every case under this
subsection shall be Category VI.”

USSG § 4B1.1(b).

Canter contends that the district court’s application of the
greater, “otherwise applicable” offense level based on his offense
conduct automatically removed him from the ambit of the career
offender Guideline such that the court was then obligated to apply
his “true” criminal history category of V instead of the criminal
history category of VI prescribed by the career offender Guideline.
Canter argues that the court was required to apply either the
offense level and criminal history category under the career
offender Guideline or the “otherwise applicable” offense level and
the criminal history category derived from the criminal history
points assessed to him, whichever pairing produced the higher
Guidelines range.

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We conclude that Canter’s argument is without merit and that
the court properly applied the career offender Guideline.

“[A]

case arises under subsection (b) of the career offender [G]uideline
in

every

case

in

which

the

defendant

qualifies

as

a

career

offender.”

United States v. Marseille, 377 F.3d 1249, 1257 (11th

Cir. 2004).

“The sole exception to this rule is the one provided

for

by

subsection

(b)

itself,

which

explicitly

takes

those

defendants convicted under 18 U.S.C. § 924(c) or 18 U.S.C. § 929(a)
out of the purview of the subsection.”

Id.

Thus, several circuits

have adopted the rule that a career offender’s criminal history
category is VI regardless of whether the sentencing court applies
the offense level listed in the § 4B1.1(b) table or the “otherwise
applicable” offense level.

See United States v. Gordon, 838 F.3d

597, 602-03 (5th Cir. 2016) (collecting cases and holding that
“[t]here is nothing in [§ 4B1.1(b)] that suggests . . . that
applying the ‘offense level otherwise applicable’ somehow removes
the district court from the purview of [that] subsection”).

We

similarly conclude that the district court did not err in basing
Canter’s advisory Guidelines range on the “otherwise applicable”
offense level and the criminal history of VI prescribed by the
career offender Guideline.
Accordingly, we affirm the district court’s judgment.

We

dispense with oral argument because the facts and legal contentions

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are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED

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