United States v. McCreary , 317 F. App'x 333 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4097
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUSAMUEL RODRIGUEZ MCCREARY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:06-cr-00190-RJC-1)
Submitted: January 27, 2009 Decided: March 13, 2009
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John J. Cacheris, DOZIER, MILLER, POLLARD & MURPHY, LLP, 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Unpublished opinions are not binding precedent in this circuit.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:
Jusamuel Rodriguez McCreary pleaded guilty, pursuant to
a plea agreement, to interfering with commerce by robbery, in
violation of 18 U.S.C. §§ 1951, 2 (2006), and use of a firearm in
connection with a crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A)(iii), 2 (2006), and was sentenced to 271 months’
imprisonment. McCreary’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967). Counsel states that in
his view, there are no meritorious issues for appeal, but he
questions whether the court erred in designating McCreary as a
career offender, in assessing criminal history points for certain
juvenile convictions, and in denying McCreary’s motions for a
departure and a variance sentence.1 McCreary was informed of his
right to file a pro se supplemental brief, but he has not done so.
Finding no error, we affirm.
McCreary’s counsel first questions whether McCreary’s
2004 and 2005 North Carolina state convictions properly served as
predicate felonies for purposes of designating McCreary as a career
offender because McCreary committed those offenses before he was
eighteen years of age. A defendant is a career offender when (1)
he was at least eighteen at the time of the instant offense;
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McCreary’s counsel also notes that McCreary waived his right
to appeal in his plea agreement. Because the Government does not
seek to enforce the waiver, we decline to address it. See United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (citing United
States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000)).
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(2) the instant offense was a felony crime of violence or a felony
controlled substance offense; and (3) the defendant has at least
two prior felony convictions for crimes of violence or controlled
substance offenses. USSG § 4B1.1(a). A “prior felony conviction”
is defined as a “prior adult federal or state conviction.” USSG
§ 4B1.2, comment. (n.1). “A conviction for an offense committed
prior to age eighteen is an adult conviction if it is classified as
an adult conviction under the laws of the jurisdiction in which the
defendant was convicted . . . .” Id.
On both counts, McCreary was convicted and sentenced in
North Carolina Superior Court. Thus, his convictions were
“necessarily adult convictions” and properly considered as prior
felony convictions for career offender purposes. See United States
v. Allen, 446 F.3d 522, 528 (4th Cir. 2006).
McCreary’s counsel next challenges the assessment of
criminal history points for certain juvenile convictions. This
argument has no practical significance because McCreary’s criminal
history category was controlled by his status as a career offender.
USSG § 4B1.1(b). Nevertheless, with respect to two of the three
convictions McCreary identifies, because the convictions were
imposed outside of the five-year window specified in USSG
§ 4A1.2(d)(2)(B), no criminal history points were assessed. As to
the third conviction, because the sentence was imposed within five
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years of the current offense, one criminal history point was
correctly assessed.
McCreary’s counsel next questions the district court’s
refusal to grant a downward departure pursuant to USSG
§ 4A1.3(b)(1) (authorizing departure on the ground that the
defendant’s criminal history category substantially over-represents
the seriousness of the defendant’s criminal history). The record
confirms the district court considered McCreary’s written and oral
arguments in support of a departure. It is thus apparent that the
court understood its authority to depart and simply chose not to do
so. As there is no evidence of an unconstitutional motive or a
mistaken view that it lacked the authority to depart, the district
court’s decision declining to depart is not reviewable. See United
States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008).
Finally, McCreary’s counsel questions whether the
district court erred by refusing to impose a variance sentence
below the advisory guideline range. A district court must engage
in a multi-step process at sentencing. First, it must calculate
the appropriate advisory guideline range. It must then consider
the resulting range in conjunction with the factors set forth in 18
U.S.C. § 3553(a) (2006) and determine an appropriate sentence.
Gall v. United States, 128 S. Ct. 586, 596 (2007). Appellate
review of a district court’s imposition of a sentence is for abuse
of discretion. Id. at 597; United States v. Pauley, 511 F.3d 468,
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473 (4th Cir. 2007). We must first ensure that the district court
committed no significant procedural error, such as failing to
properly calculate the guideline range, treating the guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence. Gall, 128 S. Ct. at 597. At the
sentencing hearing in this case, the district court appropriately
treated the guidelines as advisory, considered the relevant factors
under § 3553(a), and sentenced McCreary at the bottom of the
properly calculated guideline range.
Turning to the substantive reasonableness of McCreary’s
sentence, we presume that a sentence imposed within the properly
calculated guideline range is reasonable. United States v. Go, 517
F.3d 216, 218 (4th Cir. 2008); see Rita v United States, 551 U.S.
__, __-__, 127 S. Ct. 2456, 2462-69 (2007) (upholding presumption
of reasonableness for within-guidelines sentences). Nothing in the
record rebuts the presumption that McCreary’s within-guidelines
sentence imposed by the district court was reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm McCreary’s convictions and sentence
and deny counsel’s motion to withdraw. This court requires that
counsel inform McCreary, in writing, of his right to petition the
Supreme Court of the United States for further review. If McCreary
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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 McCreary.
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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