United States v. Vincent White , 694 F. App'x 129 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4454
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VINCENT DONTA WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. James A. Beaty, Jr., Senior District Judge. (1:16-cr-00026-JAB-1)
Submitted: July 27, 2017 Decided: July 31, 2017
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Mireille P. Clough, Assistant Federal Public
Defender, Winston-Salem, North Carolina, for Appellant. Sandra J. Hairston, Acting
United States Attorney, Michael A. DeFranco, Assistant United States Attorney, Kyleigh
E. Feehs, Third-Year Law Student, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent Donta White pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (2012). The district court adopted the presentence
report without objection, applying an enhancement pursuant to U.S. Sentencing
Guidelines Manual § 2K2.1(a)(2) (2015) because White had committed the firearm
offense after sustaining the following North Carolina felony convictions: assault by
strangulation; sell and deliver cocaine; conspiracy to possess with intent to sell and
deliver cocaine; and conspiracy to sell and deliver cocaine. The district court sentenced
White to a below-Guidelines sentence of 103 months in prison.
White appeals the district court’s application of the enhancement, arguing that his
North Carolina conspiracy convictions do not qualify as “controlled substance” offenses
as defined in the Sentencing Guidelines. Because White did not raise his claim below,
our review is for plain error. United States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010).
To establish plain error, White must show that an error occurred, that it was plain, and
that it affected his substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993).
We will not exercise our discretion to correct plain error unless the error “seriously
affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Id.(internal quotation marks omitted).
Section 2K2.1(a)(2) of the U.S. Sentencing Guidelines Manual provides for a base
offense level of “24, if the defendant committed any part of the instant offense
subsequent to sustaining at least two felony convictions of either a crime of violence or a
controlled substance offense.” USSG § 2K2.1(a)(2) (2015). White concedes that,
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regardless of whether his two conspiracy convictions qualify as controlled substance
offenses, his assault and distribution convictions satisfy the requirements of USSG
§2K2.1(a) such that the district court did not err in applying the enhancement. To the
extent that White complains that the district court improperly considered the conspiracy
convictions in its determination of his sentence, we conclude that the district court
correctly considered White’s criminal history as part of its analysis of the factors set forth
in 18 U.S.C. § 3553(a) (2012). Because White cannot establish that any alleged error
affected his substantial rights, we affirm the district court’s judgment. We dispense with
oral argument because the facts and legal arguments are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
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