United States v. Randolph Austin , 595 F. App'x 226 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4439
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RANDOLPH HARRIS AUSTIN, a/k/a Randolph Harris, a/k/a
Matarbus Raynard Fewell,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:05-cr-00213-RJC-DCK-1)
Submitted: December 22, 2014 Decided: January 6, 2015
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ross Hall Richardson, Executive Director, Ann L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2006, a jury convicted Randolph Harris Austin of
conspiracy to possess with intent to distribute fifty grams or
more of cocaine base and five hundred grams or more of cocaine,
21 U.S.C. §§ 841(b)(1)(A), 846 (2012) (Count One), and attempt
to possess with intent to distribute cocaine, 18 U.S.C. § 2
(2012), 21 U.S.C. § 841(a) (2012) (Count Two). The Government
filed an information pursuant to 21 U.S.C. § 851 (2012) based on
Austin’s prior North Carolina drug convictions. He was
sentenced as a career offender to life imprisonment on Count
One, and 360 months’ imprisonment on Count Two, to run
concurrently. This court affirmed on appeal. United States v.
Austin, 347 F. App’x 945 (4th Cir. 2009).
In 2011, Austin moved to vacate his sentence pursuant
to 28 U.S.C. § 2255 (2012), arguing inter alia that he was
improperly sentenced in light of our decision in United States
v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), because he
did not have the requisite qualifying prior convictions to
trigger a mandatory life sentence or the career offender
designation. The district court granted the motion with regard
to the Simmons issue and ordered resentencing.
At resentencing, the district court concluded that
Austin did not qualify for the enhanced sentence under § 851 or
the career offender designation. The court further sustained
2
Austin’s objections to three criminal history points, as
calculated in the original PSR, assigned to convictions that
were consolidated for sentencing. See United States v. Davis,
720 F.3d 215 (4th Cir. 2013) (holding that “consolidated
sentence” or “consolidated judgment” under North Carolina law is
single sentence for Guidelines purposes). The district court
calculated a revised Guidelines range of 110 to 137 months in
prison based on a total offense level of twenty-six and a
criminal history of twelve points, category V. The district
court ultimately denied Austin’s motion for a downward variance.
The court noted Austin’s significant criminal history and, after
expressly considering the various 18 U.S.C. § 3553(a) (2012)
factors and providing an individualized assessment, sentenced
Austin within the Guidelines range to 132 months in prison.
On appeal, Austin’s counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), certifying that
there are no meritorious grounds for appeal but questioning
whether the district court erred in calculating Austin’s
criminal history points. Although informed of his right to do
so, Austin has not filed a pro se supplemental brief. The
Government declined to file a response.
We review Austin’s sentence for reasonableness “under
a deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41, 51 (2007). This review entails
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appellate consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a)
factors, selected a sentence based on facts that were not
clearly erroneous, and sufficiently explained the selected
sentence. Id. at 49-51.
If the sentence is free of “significant procedural
error,” we review it for substantive reasonableness, “tak[ing]
into account the totality of the circumstances.” Id. at 51.
Any sentence within or below a properly calculated Guidelines
range is presumptively substantively reasonable. United States
v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014), cert. denied,
135 S. Ct. 421 (2014); United States v. Susi, 674 F.3d 278, 289-
90 (4th Cir. 2012). Such a presumption can only be rebutted by
a showing that the sentence is unreasonable when measured
against the § 3553(a) factors. Louthian, 756 F.3d at 306.
Because Austin did not object to the disputed criminal
history points, our review is limited to plain error. United
States v. Hamilton, 701 F.3d 404, 410 (4th Cir. 2012). To
establish plain error, a defendant must show that “(1) there is
an error, (2) the error is plain, and (3) the error affects
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substantial rights.” Henderson v. United States, 133 S. Ct.
1121, 1126 (2013) (internal quotation marks and alteration
omitted).
Austin’s counsel argues that, while the district court
properly removed at resentencing criminal history points for
three North Carolina prior convictions that were consolidated at
sentencing, it overlooked other consolidated convictions that
were also counted in violation of Davis. Specifically, he
directs our attention to Austin’s March 25, 1997 conviction for
driving with a revoked license which was consolidated with
another conviction at sentencing and therefore improperly
assessed a criminal history point. The second group consisted
of May 25, 2004 convictions for driving with a revoked license,
assault on a female, and resisting an officer, which were
consolidated with another conviction for driving with a revoked
license. This second group was assessed a total of four points
when, under Davis, it should have received only one.
We agree that these four points were improperly
included in Austin’s revised criminal history calculation.
While this constitutes error, we conclude that Austin cannot
demonstrate the error affected his substantial rights, which
entails showing that the error actually affected the outcome of
the proceedings, i.e., that his “sentence was longer than that
to which he would otherwise be subject.” United States v.
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Angle, 254 F.3d 514, 518 (4th Cir. 2001). Austin has not
established that, due to the Davis error, his Guidelines range
would have been lower had the consolidated sentences been
counted as single sentences.
In the original PSR, the probation officer calculated
a total of eighteen criminal history points. This in fact was
the result of an arithmetical mistake, as the points totaled
twenty-three. While the district court at resentencing reduced
the overall criminal history points, it started with the
incorrectly calculated base of eighteen points as reported in
the original PSR. The original miscalculation benefitted Austin
with a five-point reduction. Hence, the four-point Davis error
raised on appeal is insufficient to affect Austin’s substantial
rights. Austin would have a total of thirteen criminal history
points but for the court’s addition in his favor. Based on a
correctly calculated criminal history score of thirteen points
and an offense level of twenty-six, Austin’s Guidelines range
would have been 120 to 150 months in prison. U.S. Sentencing
Guidelines Manual, ch. 5, pt. A (2013). Because this
miscalculation caused the court to apply a lower Guidelines
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range than was warranted, Austin cannot show the error affected
his substantial rights. *
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the amended judgment. This court requires
that counsel inform Austin, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Austin requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Austin. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
*
See Greenlaw v. United States, 554 U.S. 237, 243-49 (2008)
(holding that, in the absence of a Government cross-appeal, an
appellate court may not sua sponte correct a district court
error if the correction would be to the defendant’s detriment).
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