United States v. Davis ( 2008 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 to three years’ imprisonment, all of which was
suspended, and 30 months’ probation. He contends that the
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 but rather relevant
conduct associated with his federal offense.
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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. United States v.
Chacon, 533 F.3d 250, 253 (4th Cir. 2008). The provisions of
USSG § 4A1.2 are applicable to the counting of prior convictions
for career offender purposes. USSG § 4B1.1 cmt. n.3. “The term
‘prior sentence’ means any 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 is part of the instant offense if it is
relevant conduct under guideline section 1B1.3. See USSG
§ 4A1.2(a)(1) cmt. n.1. Under guideline section 1B1.3(a)(2),
relevant conduct includes acts that were part 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 prior to the acts or omissions constituting the
instant federal offense (the offense of conviction) is not
considered as part of the same course of conduct or common
scheme or plan as the offense of conviction.” When a defendant
has been convicted of an offense, but not yet sentenced, the
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conviction shall be countable if a sentence resulting from that
conviction otherwise would be countable. See USSG §
4A1.2(a)(4). A defendant is “convicted of an offense” under
this provision when guilt has been established, whether by
guilty plea, trial, or plea of nolo contendere. Id.
We hold that the district court did not err in
sentencing Davis as a career offender based upon his prior
convictions in 2006. The guidelines do not require that a
“sentence of imprisonment” be imposed in order for a prior
conviction to be counted as part of a defendant’s criminal
history. An offense for which a defendant has been convicted,
by guilty plea or otherwise, but not yet sentenced, may
nonetheless be counted for purposes of determining the
defendant’s criminal history. 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 conduct associated with the
federal offense.
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We therefore affirm the district court’s judgment. 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
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