United States v. Stallard ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4113
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NICHOLAS EMORY STALLARD,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief
District Judge. (1:07-cr-00041-jpj-pms-1)
Submitted: February 18, 2009 Decided: March 13, 2009
Before TRAXLER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Nancy C. Dickenson,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellant. Julia C. Dudley, Acting United States Attorney,
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nicholas Emory Stallard pled guilty to bank robbery,
18 U.S.C. §§ 2113(a), 2 (2006) (Count 1), and conspiracy to
commit bank robbery and to possess, conceal, or dispose of
stolen bank funds, 18 U.S.C. §§ 371, 2113(c) (2006) (Count 3).
He received a career offender sentence of 151 months
imprisonment. U.S. Sentencing Guidelines Manual § 4B1.1 (2007).
Stallard appeals his sentence, arguing that the district court
erred in sentencing him as a career offender and in applying the
2007 Guidelines Manual. We affirm.
Stallard previously had been convicted of distributing
cocaine in June 1998 in Carroll County, Virginia, and in January
1999 in Grayson County, Virginia. He also had a federal
conviction for possession of a firearm in furtherance of drug
trafficking, 18 U.S.C.A. § 924(c) (West 2000 & Supp. 2008), in
connection with the January 1999 drug conviction. At
sentencing, Stallard argued unsuccessfully, based on provisions
in the 2006 Guidelines Manual, that these offenses should be
counted as one offense rather than counted separately. 1 Under
§ 4B1.1, to qualify for sentencing as a career offender, a
1
Under Application Note 3 to § 4B1.1, “[t]he provisions of
§ 4A1.2 . . . are applicable to the counting of convictions
under § 4B1.1.” Multiple prior sentences are counted separately
unless certain conditions specified in § 4A1.2 are met.
2
defendant must have at least two prior convictions for either a
drug offense or a crime of violence. 2
The district court noted that it was required to apply
the 2007 guidelines in effect at the time of sentencing, 3 that
§ 4A1.2(a) recently had been amended, 4 and that it currently
provided that prior sentences were counted separately when there
was no intervening arrest “unless (A) the sentences resulted
from offenses contained in the same charging instrument; or (B)
the sentences were imposed on the same day.” Stallard’s prior
convictions did not meet those conditions. The court also
stated that, even if the issue were determined under the 2006
guidelines, it would not find that the prior convictions were
part of the same course of conduct because they were committed
“in different localities,” and on “widely separate dates,” even
though they “involve[d] the same offense.”
Although Stallard did not question the district
court’s use of the 2007 Guidelines Manual at sentencing, he
maintains in this appeal that the court’s application of the
2
A § 924(c) conviction is a “crime of violence” if the
underlying offense was a drug offense. USSG § 4B1.2, comment.
(n.1). If the defendant was also convicted of the underlying
drug offense (as happened here), the sentences for both prior
convictions are counted as a single sentence. Id.
3
See USSG § 1B1.11.
4
USSG App. C, amend. 709, eff. Nov. 1, 2007.
3
2007 guidelines violated the Ex Post Facto Clause. 5 Under USSG
§ 1B1.11(b)(1), to calculate the advisory guideline range, the
sentencing court must apply the Guidelines Manual in effect on
the date of sentencing unless its use would violate the Ex Post
Facto Clause, in which case the Guidelines Manual in effect on
the date the offense of conviction was committed is applied
instead. 6 Because the district court correctly determined that
Stallard would qualify as a career offender under either the
2006 or the 2007 Guidelines Manual, no ex post facto violation
occurred.
Stallard was a career offender under the 2007
guidelines because the Carroll County cocaine distribution that
he committed in June 1998, the federal § 924(c) offense he
committed in January 1999, and the Grayson County cocaine
distributions he committed in January 1999 were all charged in
5
This issue, and others Stallard raises for the first time
on appeal, are reviewed for plain error. United States v.
Olano, 507 U.S. 725, 732-37 (1993). We are satisfied that no
errors have been identified in this manner.
6
We note that a circuit split has developed on the issue of
whether, after United States v. Booker, 543 U.S. 220 (2005), the
Ex Post Facto Clause no longer applies to the sentencing
guidelines because they are now advisory. This court has not
decided the issue as yet. See United States v. Myers, 553 F.3d
328, 333 n.2 (4th Cir. 2009). We conclude that the issue need
not be addressed in this case.
4
separate indictments, and all three sentences were imposed on
different dates.
Stallard did not challenge the accuracy of his
criminal record in the district court, but he argues on appeal
that the government failed to prove that he was a career
offender because it did not introduce the charging documents for
the predicate offenses. This claim is meritless. First, the
hearsay rule does not apply at sentencing. USSG § 6A1.3(a)
(sentencing court may consider any relevant information to
resolve disputes, “provided that the information has sufficient
indicia of reliability to support its probable accuracy”), and
the testimony given by the state investigator for the government
at sentencing was not erroneous in any significant respect.
Second, Stallard’s reliance on Shepard v. United States, 544
U.S. 13 (2005), and its progeny is misplaced. 7 Shepard and the
cases stemming from it have limited, if any, relevance in this
case because there was no dispute about the nature of Stallard’s
prior convictions, only the number countable under § 4A1.2.
7
Shepard held that, in deciding whether a prior guilty
plea was to a violent felony rather than a non-violent offense,
the district court could consider only “the terms of the
charging document, the terms of a plea agreement or transcript
of colloquy between judge and defendant in which the factual
basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.” 544 U.S. at
26.
5
Stallard’s principal argument is that, under
Application Note 3 of the 2006 Guidelines Manual, the predicate
convictions for his career offender status were related cases
and should have been treated as one offense under the test set
out in United States v. Breckenridge, 93 F.3d 132 (4th Cir.
1996), for determining whether prior offenses were part of a
“single common scheme or plan.” To be a career offender under
USSG § 4B1.1, a defendant must have two predicate convictions
which are counted separately under USSG § 4A1.1. To determine
which of a defendant’s prior felony convictions are counted
separately, the 2006 guidelines direct a sentencing court to
look to the provisions of § 4A1.2, which treat prior sentences
in “related cases” as a single sentence. USSG § 4A1.2(a)(2).
Application Note 3 to § 4A1.2 explains: “[p]rior sentences are
considered related if they resulted from offenses that (1)
occurred on the same occasion, (2) were part of a single common
scheme or plan, or (3) were consolidated for trial or
sentencing.” We have considered these factors and conclude that
the district court did not err in finding that Stallard’s prior
offenses were not part of a common scheme or plan.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
6
materials before the court and argument would not aid the
decisional process.
AFFIRMED
7