United States v. Harp ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4817
JOHNNY CRAIG HARP,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-03-143)
Argued: March 18, 2005
Decided: May 4, 2005
Before WILKINS, Chief Judge, and WIDENER
and TRAXLER, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkins wrote the opin-
ion, in which Judge Widener and Judge Traxler joined.
COUNSEL
ARGUED: John A. Dusenbury, Jr., Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greensboro, North Carolina, for Appellant. Lawrence Patrick Auld,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee. ON BRIEF: Louis C. Allen, III, Fed-
eral Public Defender, Greensboro, North Carolina, for Appellant.
2 UNITED STATES v. HARP
Anna Mills Wagoner, United States Attorney, Angela H. Miller,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
OPINION
WILKINS, Chief Judge:
Johnny Craig Harp appeals his sentence for using a dangerous
weapon in committing a bank robbery. See 18 U.S.C.A. § 2113(d)
(West 2000). We affirm.
I.
Harp pleaded guilty to the offense of conviction pursuant to a writ-
ten plea agreement. The presentence report placed Harp’s base
offense level at 20. See United States Sentencing Guidelines Manual
§ 2B3.1(a) (2002). Harp received a two-level enhancement under
§ 2B3.1(b)(1) because the property of a financial institution was
taken, and a three-level enhancement under § 2B3.1(b)(2)(E) because
he possessed a dangerous weapon during the commission of the rob-
bery. Additionally, because Harp had previously been convicted of
robbery with a dangerous weapon and felonious possession with the
intent to distribute marijuana, he was designated a career offender,
and his offense level was increased to 34. See U.S.S.G. § 4B1.1. The
district court reduced this offense level by three levels for acceptance
of responsibility, see U.S.S.G. § 3E1.1, resulting in a total offense
level of 31. Because of the career offender designation, Harp’s Crimi-
nal History Category was VI, see U.S.S.G. § 4B1.1(b), producing a
guideline range of 188-235 months. On the Government’s motion, the
district court departed downward to account for Harp’s substantial
assistance in the prosecution of his codefendant, see U.S.S.G.
§ 5K1.1, p.s., sentencing Harp to 128 months’ imprisonment.
II.
Harp maintains that the district court erred in concluding that he
met the requirements for designation as a career offender. Because
UNITED STATES v. HARP 3
Harp raises this claim for the first time on appeal, we review for plain
error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 731-32 (1993). To establish plain error, Harp must show that an
error occurred, that the error was plain, and that the error affected his
substantial rights. See Olano, 507 U.S. at 732. Even if Harp makes
this three-part showing, correction of the error remains within our dis-
cretion, which we "should not exercise . . . unless the error ‘seriously
affect[s] the fairness, integrity or public reputation of judicial pro-
ceedings.’" Id. (quoting United States v. Young, 470 U.S. 1, 15
(1985)) (second alteration in original).
For Harp to be designated a career offender, the Government must
establish (1) that Harp was at least 18 at the time of the instant
offense, (2) that the instant offense is a felony that is either a "crime
of violence" or a "controlled substance offense," and (3) that Harp had
at least two prior felony convictions for either a "crime of violence"
or a "controlled substance offense." U.S.S.G. § 4B1.1(a). Harp con-
cedes that the Government established the first two requirements, but
he argues that one of his prior convictions considered by the district
court—a July 16, 2001 North Carolina conviction for possession with
the intent to distribute marijuana—was not a "controlled substance
offense" because it was not "punishable by imprisonment for a term
exceeding one year." U.S.S.G. § 4B1.2(b).1 To determine whether a
conviction is for a crime punishable by a term of imprisonment
exceeding one year, we consider the law in effect at the time of the
conviction. See United States v. Johnson, 114 F.3d 435, 445 (4th Cir.
1997); see also United States v. Norris, 319 F.3d 1278, 1281-83 (10th
Cir. 2003) (holding, in the context of determining the sufficiency of
an indictment charging possession of a firearm by a felon, that a Kan-
sas conviction was punishable by a term of more than one year
because the Kansas sentencing scheme allowed upward departure to
1
Section 4B1.2(b) provides in full that
[t]he term ‘controlled substance offense’ means an offense under
federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import,
export, distribution, or dispensing of a controlled substance (or
a counterfeit substance) or the possession of a controlled sub-
stance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
4 UNITED STATES v. HARP
a sentence greater than one year for the prior offense; finding it was
immaterial that, after the defendant was convicted of the prior
offense, the Kansas Supreme Court held that the Kansas scheme for
permitting upward departures was unconstitutional under Apprendi v.
New Jersey, 530 U.S. 466 (2000)).
Harp maintains that because the specific facts of his case did not
provide any basis for imposition of a sentence exceeding one year, his
prior conviction was not for an offense punishable by a term of
imprisonment of more than one year. He explains that although the
maximum aggravated punishment for possession with the intent to
distribute marijuana, a Class I felony, is 15 months, the maximum
non-aggravated punishment is only 12 months. See N.C. Gen. Stat.
§ 15A-1340.17(c), (d) (LexisNexis 2003). But this court has already
rejected such an individualized analysis in United States v. Jones, 195
F.3d 205 (4th Cir. 1999), in construing statutory language essentially
identical to the language of § 4B1.2(b). In Jones, we held, in the con-
text of a felon-in-possession-of-firearm conviction, see 18 U.S.C.A.
§ 922(g)(1) (West 2000), that a prior North Carolina conviction was
for "a crime punishable by imprisonment for a term exceeding one
year," id., if any defendant charged with that crime could receive a
sentence of more than one year. See Jones, 195 F.3d at 206-07. In so
doing, we reasoned:
[I]n § 922(g)(1), "punishable" is an adjective used to
describe "crime." As such, it is more closely linked to the
conduct, the crime, than it is to the individual convicted of
the conduct. Congress could have written § 922(g)(1) differ-
ently had it intended to focus on the individual in particular
rather than the crime for which the individual was con-
victed. Instead of the phrase, "individual convicted . . . of a
crime punishable by imprisonment for a term exceeding one
year," Congress could have used the phrase, "individual
punished by imprisonment for a term exceeding one year"
or even "individual sentenced for imprisonment for a term
exceeding one year."
Id. at 207 (internal quotation marks omitted) (alterations in original).
Thus, to determine whether a conviction is for a crime punishable by
a prison term exceeding one year, Jones dictates that we consider the
UNITED STATES v. HARP 5
maximum aggravated sentence that could be imposed for that crime
upon a defendant with the worst possible criminal history. See id. at
206-08.
Harp contends that this analysis is no longer appropriate because,
in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), a defen-
dant’s Sixth Amendment rights are violated when he is sentenced
under North Carolina law based on aggravating factors that were nei-
ther admitted by the defendant nor found by a jury beyond a reason-
able doubt, see State v. Allen, 601 S.E.2d 299, 306 (N.C. Ct. App.),
review allowed, 603 S.E.2d 799 (N.C. 2004). We do not agree. Even
were we to ignore the fact that Blakely had not been decided at the
time of Harp’s prior conviction,2 but see Johnson, 114 F.3d at 445;
Norris, 319 F.3d at 1281-83, we would still conclude that Blakely did
not prevent his drug crime from being punishable by a prison term of
more than one year. That is because the Sixth Amendment principle
announced in Apprendi—and applied in Blakely and United States v.
Booker, 125 S. Ct. 738 (2005)—pertains only to the "process by
which the elements of [a] crime and other relevant facts must be
determined." United States v. McAllister, 272 F.3d 228, 232 (4th Cir.
2001). North Carolina courts have already concluded that the state
sentencing regime can accommodate the process that Blakely
demands. See State v. Harris, 602 S.E.2d 697, 702 (N.C. Ct. App.)
(concluding that aggravating factors may be used to impose a sen-
tence beyond the presumptive term if the factors are found by a jury
beyond a reasonable doubt or stipulated to by the defendant or if the
defendant waives his right to a jury trial), temporary stay allowed,
605 S.E.2d 472 (N.C. 2004); cf. State v. Lucas, 548 S.E.2d 712, 731-
32 (N.C. 2001) (holding that firearm enhancement could be used to
increase the "statutory maximum" sentence if the facts supporting the
enhancement are charged in an indictment and found by a jury
2
At the time of Harp’s conviction, facts warranting an aggravated sen-
tence were not required to be included in the indictment and found by a
jury beyond a reasonable doubt. Prior to Blakely, the North Carolina
Supreme Court had held that the "statutory maximum" for crimes under
its structured sentencing regime was the highest sentence authorized for
the crime charged assuming the highest theoretical criminal history and
the aggravated punishment. See State v. Lucas, 548 S.E.2d 712, 730-31
(N.C. 2001).
6 UNITED STATES v. HARP
beyond a reasonable doubt); State v. McNair, 554 S.E.2d 665, 671
(N.C. Ct. App. 2001) (same). Thus, there continues to be no constitu-
tional prohibition to imposing a prison term exceeding one year for
the crime of which Harp was convicted. We therefore conclude that
Harp’s drug conviction was properly considered to be for a "con-
trolled substance offense."
III.
Harp also argues that his constitutional rights were violated when
the district court determined that he was a career offender without the
elements of that designation having been charged in an indictment.3
Because this allegation of error also was not preserved in the district
court, we again review for plain error. We need not determine
whether the district court plainly erred in this manner and affected
Harp’s substantial rights in so doing, because even if it did, we would
not exercise our discretion to notice the error. See United States v.
Cotton, 535 U.S. 625, 633-34 (2002) (holding that sentence exceeding
maximum authorized by facts alleged in the indictment would not be
vacated on plain error review because evidence supporting judge-
found facts on which sentence was based was "overwhelming" and
"essentially uncontroverted"). We have already rejected Harp’s only
argument that he did not meet the career offender requirements.
Because Harp had no legitimate defense to the career offender desig-
nation, "[t]he real threat . . . to the ‘fairness, integrity, and public rep-
utation of judicial proceedings’ would be if [Harp] . . . were to receive
a sentence prescribed for those [not satisfying the armed career
3
Harp does not challenge the constitutionality of the two-level
enhancement he received because property of a financial institution was
taken, see U.S.S.G. § 2B3.1(b)(1), or the three-level enhancement
imposed because he possessed a dangerous weapon during the commis-
sion of the robbery, see U.S.S.G. § 2B3.1(b)(2)(E). Such a challenge
would have been fruitless in any event. Even assuming that the district
court plainly erred in imposing those enhancements, their imposition did
not affect Harp’s substantial rights because it resulted in an offense level
of 25. The career offender designation, see U.S.S.G. § 4B1.1, which did
not rely on these enhancements, and the acceptance of responsibility
reduction, see U.S.S.G. § 3E1.1, produced a total offense level of 31—
from which the district court departed downward to account for Harp’s
substantial assistance, see U.S.S.G. § 5K1.1.
UNITED STATES v. HARP 7
offender criteria] because of an error that was never objected to" in
the district court. Id. at 634.
IV.
Harp finally maintains that even if the district court did not err in
designating him a career offender, it erred in failing to treat the guide-
lines as advisory. As with Harp’s other claims, we review for plain
error because Harp did not raise this issue in the district court. We
conclude that Harp has not satisfied the plain error requirements.
Although the failure to treat the guidelines as advisory was plain
error,4 Harp has not demonstrated that it affected his substantial
rights. See United States v. White, No. 04-4349, slip op. at 11, 20 (4th
Cir. Apr. 26, 2005) (holding, with regard to a defendant whose appeal
was pending when Booker was decided, that it was plain error for the
district court to treat the guidelines as mandatory, but that to satisfy
the third prong of plain error analysis a defendant must show that he
was actually prejudiced). It is apparent from the record here that treat-
ing the guidelines as mandatory had nothing to do with the sentence
imposed by the district court. Rather, the sentence imposed was based
on the sentencing range recommended by the Government to account
for the substantial assistance that Harp provided in the prosecution of
his codefendant. The forfeited error therefore does not warrant reversal.5
V.
For the foregoing reasons, we find no reversible error and therefore
affirm Harp’s sentence.
AFFIRMED
4
We of course offer no criticism of the district judge, who followed the
law and procedure in effect at the time of Harp’s sentencing.
5
Harp also raises challenges in a pro se supplemental brief. We have
carefully considered these allegations of error and find them to be with-
out merit.