United States of America, Plaintiff-appellee, v. Carson E. Mccabe, Defendant-appellant, 948 F.2d 1283 (4th Cir. 1991)

Carson McCabe pled guilty to driving while impaired (18 U.S.C. § 13 (1988) assimilating N.C.Gen.Stat. § 20-138.1 (Michie 1990)) on Ft. Bragg in North Carolina and received the maximum sentence of one year from a United States magistrate judge, with the recommendation that he be incarcerated at FCI-Butner to receive alcohol and substance abuse treatment. He appealed his sentence to the district court, arguing that he should have been sentenced under the sentencing guidelines, that there is an analogous guideline to driving while impaired, and that his sentence was unreasonable. The district court affirmed the sentence and Harrison appeals to this Court on the same grounds.¹  We affirm.

Under U.S.S.G. § 2X5.1, if there is no guideline for a particular offense, the most analogous guideline should be used. If there is no analogous guideline, the sentencing court should impose an appropriate sentence in keeping with the purposes set forth in 18 U.S.C. § 3553(a) (2) (West 1985 & Supp.1991).²  McCabe made no objection on the record to the district court's determination of the sentence. On appeal he asserts that his attorney made an objection in a bench conference which was not transcribed; however, the objection concerned only the severity of the one-year sentence. McCabe does not contend that counsel objected to the magistrate judge's failure to sentence him under the guidelines. Therefore, the issue has not been preserved for review. United States v. Holguin, 868 F.2d 201 (7th Cir.), cert. denied, 58 U.S.L.W. 3214 (U.S.1989). Moreover, it does not appear that plain error occurred because neither the offense guidelines suggested by McCabe³  nor any other offense covered by the guidelines are sufficiently analogous to driving while impaired to be used in calculating his sentence.

Review of a sentence imposed for an offense for which there is no sentencing guideline is limited to whether the sentence was imposed in violation of law or is plainly unreasonable. Because McCabe's sentence was within the limits prescribed by the state statute, it was not imposed in violation of law. United States v. Young, 916 F.2d 147 (4th Cir. 1990). McCabe argues that the sentence is plainly unreasonable because:

(1) the magistrate gave no reason for imposing it;

(2) he estimates he would have a guideline range of 0-7 months if he were sentenced under the guidelines;

(3) only the "most heinous" state defendants get the maximum sentence, and parole is available to them;

(4) most state driving while impaired convictions in which a prison term is imposed are sentences of less than seven months;

(5) his completion of a five-day detoxification program is a mitigating factor.

McCabe's driving record shows that his license has been revoked for "Failure to appear or comply with sanctions" and for "Failure to complete A & D school." His retained attorney sought and was granted leave to withdraw because of his client's uncooperative attitude. Further, while McCabe was on pretrial release prior to entering his guilty plea, his family found him passed out in his truck and called the police, fearing he had overdosed on Valium and alcohol. He informed Pretrial Services the next morning that he had consumed a quart of beer the night before, although one of the conditions of his release was that he abstain from excessive use of alcohol. It was because of this conduct that he was referred to the detoxification program, which he argues should have been a mitigating factor to balance his 1987 conviction for driving while impaired.⁴  Given these facts, the maximum sentence of one year was not plainly unreasonable.⁵ 

The judgment of the district court is therefore affirmed. 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 the decisional process.

AFFIRMED.