US v. Michael Davis, No. 08-4249 (4th Cir. 2008)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4249 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL KENTA DAVIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:07-cr-00086-1) Submitted: November 19, 2008 Decided: December 12, 2008 Before KING, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Banumathi Rangarajan, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Kenta Davis appeals the 300-month sentence the district court imposed after he pled guilty to possession with intent to distribute more than 50 grams of cocaine base, on or about April 30, 2007, in violation of 21 U.S.C. § 841(a)(1) (2006). Davis argues that the district court erred in sentencing him as a career offender pursuant to U.S. Sentencing Guidelines Manual ( USSG ) § 4B1.1. The enhancement was based, in part, upon two convictions that Davis received in 2006: (1) a conviction in Maryland state court for possession with intent to distribute marijuana, for which Davis failed to appear for sentencing, resulting in issuance of a bench warrant for his arrest; and (2) a conviction in South Carolina state court for possession with intent to distribute marijuana, for which he was sentenced suspended, to and three 30 years months imprisonment, probation. all He of which was that the contends convictions in 2006 did not disrupt his ongoing criminal conduct because he was never imprisoned for them, and because he was never sentenced for the conviction in Maryland and could still move to withdraw his guilty plea prior to sentencing. Accordingly, he avers the state convictions did not constitute prior convictions under the Guidelines conduct associated with his federal offense. 2 but rather relevant In assessing whether a district court properly applied the Guidelines, we review the lower court s factual findings for clear error and its legal conclusions de novo. Chacon, 533 F.3d 250, 253 (4th Cir. 2008). United States v. The provisions of USSG § 4A1.2 are applicable to the counting of prior convictions for career offender purposes. prior sentence means any USSG § 4B1.1 cmt. n.3. The term sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense. USSG § 4A1.2(a)(1) (emphasis added). The term sentence of imprisonment is separately defined in USSG § 4A1.2(b). Conduct relevant conduct § 4A1.2(a)(1) relevant is part under cmt. conduct of the instant guideline n.1. Under includes section guideline acts offense that 1B1.3. section were part if it See is USSG 1B1.3(a)(2), of the same course of conduct or common scheme or plan as the offense of conviction when the offenses are the type which would be grouped under § 3D1.2(d). However, as noted by Application Note 8 to USSG § 1B1.3, offense conduct associated with a sentence that was imposed instant prior federal considered as to the offense part of acts (the the or omissions offense same course of constituting conviction) of scheme or plan as the offense of conviction. conduct or is the not common When a defendant has been convicted of an offense, but not yet sentenced, the 3 conviction shall be countable if a sentence resulting from that conviction otherwise 4A1.2(a)(4). this would be countable. See when guilt has been established, guilty plea, trial, or plea of nolo contendere. We sentence by in of conviction history. hold Davis convictions § A defendant is convicted of an offense under provision sentencing USSG that as the a career 2006. The imprisonment to be district counted guidelines be as imposed part did based do of not in a by Id. court offender whether not upon err his require order for prior that a defendant s in a prior criminal An offense for which a defendant has been convicted, guilty plea nonetheless be or otherwise, counted but for not purposes defendant s criminal history. yet of sentenced, may determining the The guidelines do not indicate that counting a prior conviction resulting from a guilty plea can be impacted by the possibility of withdrawing the plea. Moreover, we note that the state offenses at issue each occurred in different states from each other and from the federal offense, and were separated in time from the federal offense by eleven months and eighteen months, respectively. Accordingly, the district court properly viewed the state offenses as prior offenses rather than relevant federal offense. 4 conduct associated with the We therefore affirm the district court s judgment. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5
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