United States v. Tayari Mitchell , 679 F. App'x 259 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4275
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAYARI RAFIKI MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00174-CCE-1)
Submitted: January 30, 2017 Decided: February 9, 2017
Before AGEE and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Stacey D. Rubain, QUANDER & RUBAIN, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Angela H. Miller, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2011, Tayari Rafiki Mitchell pled guilty to possession
of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1),
and possession with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The district
court sentenced him as an armed career criminal pursuant to 18
U.S.C. § 924(e), and as a career offender pursuant to U.S.
Sentencing Guidelines Manual § 4B1.1. In 2012, Mitchell filed a
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255. The district court granted Mitchell’s motion
after the Government conceded that Mitchell should be
resentenced because he no longer qualified as an armed career
criminal. However, on resentencing the court found that
Mitchell still merited the career offender enhancement and
imposed a prison sentence of 160 months. On appeal, Mitchell
challenges the court’s career offender determination.
We review de novo a district court’s determination that a
prior state conviction qualifies as a career offender predicate.
United States v. Jones, 667 F.3d 477, 482 (4th Cir. 2012). A
defendant is a career offender if (1) he was at least eighteen
years old when the instant offense was committed, (2) the
instant offense is a felony and is either a crime of violence or
a controlled substance offense, and (3) he has at least two
prior felony convictions for crimes of violence or controlled
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substance offenses. See U.S.S.G. § 4B1.1(a) (2015). The third
requirement is satisfied where “(1) the defendant has previously
sustained at least two felony convictions of either a crime of
violence or a controlled substance offense; and (2) the
sentences for at least two of the aforementioned felony
convictions are counted separately.” United States v. Davis,
720 F.3d 215, 217 (4th Cir. 2013) (internal quotation marks
omitted); see U.S.S.G. § 4B1.2(c).
In his counseled brief, Mitchell concedes that one of his
prior convictions — North Carolina felony assault with a deadly
weapon with intent to kill inflicting serious injury —
constitutes a career offender predicate, but disputes the
district court’s finding that his prior conviction for North
Carolina felony possession with intent to sell and deliver
(“PWISD”) cocaine also qualifies as a predicate. Specifically,
Mitchell contends that a sentence was never imposed for his
PWISD cocaine conviction, and, therefore, it cannot be counted
as a prior conviction for a controlled substance offense.
Mitchell’s PWISD cocaine conviction was consolidated for
judgment with several other convictions, the most serious of
which was a conviction for cocaine trafficking that carried a
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maximum penalty of 15 years’ imprisonment. 1 Because the maximum
sentence for a PWISD cocaine conviction was 10 years, Mitchell
asserts that his sentence of 12 years must have been imposed
only as to the cocaine trafficking conviction.
In support of his argument, Mitchell seeks to expand the
holding of United States v. Davis, in which we found that a
consolidated sentence under the North Carolina Structured
Sentencing Act results in a single sentence that may serve only
as one sentence for purposes of determining whether a defendant
is a career offender. 720 F.3d at 218-20. Mitchell, however,
was sentenced before the October 1, 1994 effective date of the
Structured Sentencing Act’s “consolidated sentence” provision,
N.C. Gen. Stat. § 15A-1340.15. At the time of Mitchell’s state
sentence, North Carolina defendants like Mitchell received
separate sentences in offenses “consolidated for sentencing.”
Davis, 720 F.3d at 219. Moreover, a sentence imposed on
convictions consolidated for judgment was based not only on the
maximum sentence for the most serious crime of conviction, but
also on the presumptive sentences assigned to each of the
convictions. N.C. Gen. Stat. § 15A-1340.4(a) (1988).
1Because the Government has conceded that the state
conviction for cocaine trafficking is not a proper predicate
offense, we do not consider this as a potential career offender
predicate.
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Therefore, we find Mitchell’s reliance on Davis unavailing. 2
Further, his reference to N.C. Gen. Stat. § 15A-1340.4(a) (1988)
does not rescue his argument.
As the district court noted, it appears from the face of
the judgment that the state sentence was imposed as to all
convictions listed therein. Specifically, the state judgment
states that the court “Orders the above offenses be consolidated
for judgment and the defendant be imprisoned for a term of
Twelve (12) Years.” None of the arguments advanced by Mitchell
renders this judgment any less clear. In addition, there is no
doubt that this sentence was counted separately from the
sentence resulting from Mitchell’s other qualifying prior
conviction. See U.S.S.G. § 4B1.2(c).
Accordingly, we affirm Mitchell’s judgment and deny his
request to file a pro se supplemental brief. We dispense with
oral argument because the facts and legal contentions are
2
We also note that, were Davis applicable to Mitchell’s
case, it would not save his claim. Davis states that “where a
defendant receives a ‘consolidated sentence’ (or ‘consolidated
judgment’) under North Carolina law, it is one sentence and
absent another qualifying sentence, the enhancement is
inapplicable.” 720 F.3d at 219. Here, the district court
counted Mitchell’s sentence for PWISD cocaine, which was
consolidated for judgment with his cocaine trafficking
conviction, as a single prior sentence, consistent with Davis.
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adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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