US v. Everette Burrell, No. 08-4134 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4134 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. EVERETTE ANTWON BURRELL, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:07-cr-00240-HEH-1) Submitted: November 24, 2008 Decided: December 16, 2008 Before KING, SHEDD, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Robert J. Wagner, Assistant Federal Public Defender, Richmond, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Peter S. Duffey, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Everette Antwon Burrell pled guilty to distribution of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2006), and was sentenced to 160 months imprisonment. Burrell asserts two sentencing errors. the district court erred by finding First, he contends that that a Virginia court s sentence of boot camp for a 1993 drug conviction counted as a prior sentence of imprisonment under U.S. Sentencing Guidelines Manual ( USSG ) § 4A1.2(e) (2007), for purposes of determining whether Burrell qualified for a sentence enhancement as a career offender. Second, Burrell argues that his sentence is unreasonable because it is greater than necessary and does not serve the sentencing goals set forth in 18 U.S.C. § 3553(a) (2006). We affirm. We review sentences for reasonableness, under an abuse of discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007); United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007). the This court may afford sentences that fall within properly calculated reasonableness. guidelines range a presumption of Pauley, 511 F.3d at 473; see Rita v. United States, 127 S. Ct. 2456, 2462 (2007) (upholding presumption of reasonableness of within-guidelines sentence). can be rebutted unreasonable when only by showing that measured against the 2 This presumption the sentence § 3553(a) is factors. United 2006) States v. (internal Montes-Pineda, quotation 445 marks and F.3d 375, citation 379 (4th Cir. omitted). In considering the district court s application of the guidelines, we review factual findings for clear error and legal conclusions de novo. United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006). When determining a defendant s criminal history, [a]ny prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant s commencement of § 4A1.2(e)(1). the instant offense is counted. USSG A sentence of imprisonment is a sentence of incarceration and refers to the maximum sentence imposed. § 4A1.2(b)(1). USSG A defendant qualifies as a career offender if: (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offenses of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. USSG § 4B1.1(a). Before purposes, criminal we a conviction consult the history. USSG is counted guidelines § 4B1.2, for career offender provision for computing comment. (n.3); States v. Mason, 284 F.3d 555, 558 (4th Cir. 2002). United As Burrell correctly notes, if his time in boot camp did not count as a prior sentence of imprisonment, then he has only one crime of 3 violence or controlled substance offense for which he served a sentence longer than one year and one month in the last fifteen years, and should not have been sentenced as a career offender. Though we have yet to address this specific issue, two other Courts of Appeals have held that time served in a bootcamp style program counts as a form of imprisonment under the sentencing guidelines. United States v. Gajdik, 292 F.3d 555, 558 (7th Cir. 2002) (internal quotation marks omitted); United States v. Brooks, 166 F.3d 723, 726 (5th Cir. 1999). the Fifth Circuit noted that, under the In Brooks, commentary to USSG § 4A1.1, confinement sentences of over six months qualify for § 4A1.2(b) treatment, but types of sentences not requiring twenty-four hours a day physical confinement, such as probation, fines, and residency in a 166 halfway F.3d at house 727 were expressly (internal quotation distinguished. Brooks, marks omitted). The court held that physical confinement is a key between distinction types of sentences. offenders sentences of imprisonment and other The guidelines make no distinction between incarcerated primarily for rehabilitation and those incarcerated simply to remove the offender from society. Id. at 726-27 (internal quotation marks and citation omitted). We find this rationale persuasive, and therefore conclude that the district court did not err in finding that Burrell s sentence to boot camp qualified as a sentence 4 of imprisonment under § 4A1.2(b). Therefore, Burrell was properly sentenced as a career offender. Burrell s second sentencing claim also fails. In determining an appropriate sentence, a district court need not robotically tick through § 3553(a) s every subsection, but should provide [this court] an assurance that the sentencing court considered the particular defendant. 657 (4th Cir. omitted). 2007) Here, the § 3553(a) factors with regard to the United States v. Moulden, 478 F.3d 652, (internal quotation district court marks and explained that citation it had considered both the § 3553(a) factors and the advisory guideline range. The court specifically noted that the promotion of respect for the law and the protection of the community were of paramount importance in this case. The court found the sentence appropriate when viewed in light of Burrell s repeated criminal convictions and continued disregard for the law. we find properly that the calculated Accordingly, 160-month sentence, which is within the advisory guidelines range, is reasonable. See Rita, 127 S. Ct. at 2462. Because we reject Burrell s challenge to his sentence, we affirm the district court s judgment. We dispense with oral argument because the facts and legal contentions are adequately 5 addressed in the materials before the court and argument would not aid the decisional process. AFFIRMED 6

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