US v. Leroy Darity, No. 09-5045 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5045 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEROY DEANGELO DARITY, Defendant -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 Affirmed by unpublished per curiam opinion.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. Carolina, Attorney, Asheville, Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North for Appellant. Anne M. Tompkins, United States Amy E. Ray, Assistant United States Attorney, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Leroy Deangelo Darity appeals his conviction and 188 month intent sentence to for distribute one count cocaine §§ 841(a)(1), 846 (2006). of base conspiracy in to possess violation of 21 with U.S.C. 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 unreasonable. convictions, A and accordingly, his sentence was We affirm. sentence is reviewed abuse of discretion standard. 38, 51 (2007). for reasonableness under an Gall v. United States, 552 U.S. This review requires consideration of both the procedural and substantive reasonableness of a sentence. Id.; 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) (holding assessment not need be that, elaborate while or the lengthy, individualized . . . it must provide a rationale tailored to the particular case . . . and [be] adequate to permit meaningful appellate review ). 2 Properly 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 imposition of a career offender enhancement. to prevent According to the Guidelines: 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 the U.S. Sentencing Guidelines Manual § 4A1.2 n.6 (2009). The plain language of the Guidelines forecloses Darity s attack on his 1993 convictions. Furthermore, the Supreme Court has held that, at the context the Armed least in pursuant to of a challenge Career Criminal to an Act, enhancement there is no 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 court collateral sentence sentencing attack unless on the a a defendant prior attack may conviction is not used recognized by to entertain enhance law. a the 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 sentence was not procedurally unreasonable. the district court s judgment. range, and the We therefore affirm We dispense with oral argument because the facts and legal contentions are adequately presented 4 in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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