United States v. Brian Scott , 521 F. App'x 112 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4525
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN EDWARD SCOTT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:11-cr-00236-WO-1)
Submitted: March 25, 2013 Decided: April 5, 2013
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Michael A. DeFranco, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Edward Scott pled guilty pursuant to a plea
agreement to one count of possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006), and
was sentenced to 156 months in prison. Scott asserts that the
district court erred under United States v. Simmons, 649 F.3d
247 (2011), and Begay v. United States, 553 U.S. 137 (2008),
when it classified him as a career offender. Scott also asserts
that given the dramatic increase to his Guidelines range because
of his career offender classification, and considering the
“minimal amount of drugs involved in this case,” his sentence
exceeded a sentence that would be “‘sufficient, but not greater
than necessary’ to meet [18 U.S.C.A. § 3553(a) (West 2000 &
Supp. 2012)’s] sentencing objectives[.]” Finding no error, we
affirm.
We review a sentence for reasonableness. Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires us to ensure that the district court committed
no significant procedural error. United States v. Evans, 526
F.3d 155, 161 (4th Cir. 2008). Procedural errors include
“failing to calculate (or improperly calculating) the Guidelines
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
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sentence—including an explanation for any deviation from the
Guidelines range.” Gall, 552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
court, we review for abuse of discretion” and will reverse
unless we conclude “that the error was harmless.” United States
v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). For instance, if
“an aggrieved party sufficiently alerts the district court of
its responsibility to render an individualized explanation” by
drawing arguments from § 3553 “for a sentence different than the
one ultimately imposed,” the party sufficiently “preserves its
claim.” Id. at 578. However, we review unpreserved non-
structural sentencing errors for plain error. Id. at 576-77.
If, and only if, we find the sentence procedurally
reasonable can we consider the substantive reasonableness of the
sentence imposed. United States v. Carter, 564 F.3d 325, 328
(4th Cir. 2009). On appeal, we presume that a sentence within
the Guidelines range is reasonable. See United States v.
Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).
Scott first asserts that the district court erred when
it classified him as a career offender because he argues that
his North Carolina fleeing to elude arrest conviction was not a
proper career offender predicate conviction. We review de novo
the district court’s characterization of Scott’s prior offense
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as a crime of violence. See United States v. Gomez, 690 F.3d
194, 197 (4th Cir. 2012).
Under U.S. Sentencing Guidelines Manual (“USSG”)
§ 4B1.1(a) (2011), a defendant is a career offender if he was
older than eighteen when he committed the instant offense, the
instant offense is a felony that is a crime of violence or a
controlled substance offense, and he had two prior felony
convictions for a crime of violence or a controlled substance
offense. A “crime of violence” is defined in USSG § 4B1.2(a)
as:
[A]ny offense under federal or state law, punishable
by imprisonment for a term exceeding one year, that —
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
USSG § 4B1.2(a) (2011).
According to Scott, his felony fleeing to elude arrest
conviction was not “punishable by imprisonment for a term
exceeding one year” under Simmons because he argues that he
could not have been sentenced to more than eleven months for
that crime. The Government presented the district court with a
North Carolina judgment of conviction, which indicated that in
2002, a North Carolina court sentenced Scott on six convictions,
two felonies and four misdemeanors. The record also indicates
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that all six convictions, one of which included the fleeing to
elude arrest conviction, were “consolidated into 1 Class C
felony” based on a felony habitual offender charge, and that
Scott was ordered to serve a “sentence of a minimum 80 months
and a maximum 105 months” for those crimes. We find that the
district court correctly determined that Scott was subject to a
sentence in excess of one year for his fleeing to elude arrest
conviction. See Simmons, 649 F.3d at 244.
We also reject Scott’s argument that his fleeing to
elude arrest conviction is no longer a “crime of violence” after
Begay. A violation of North Carolina’s speeding to elude arrest
statute is a Class I misdemeanor unless two or more aggravating
factors listed in the statute are present, in which case the
offense is a Class H felony. See N.C. Gen. Stat. § 20-141.5
(2011). It is undisputed that because two or more aggravating
factors were present during the flight for which Scott was
convicted, his violation of the statute was punishable as a
Class H felony. See N.C. Gen. Stat. § 20-141.5(b) (2011).
Scott essentially concedes that his argument that a
violation of § 20-141.5(b) is not a crime of violence is
foreclosed by the Supreme Court’s decision in Sykes v. United
States, 131 S. Ct. 2267, 2274 (2011) (holding that a “risk of
violence is inherent to vehicle flight”), and this Court’s
decision in United States v. Hudson, 673 F.3d 263, 268 (4th
5
Cir.) (holding that there “are several reasons by which to
conclude that intentional vehicular flight in any manner poses a
potential level of risk that is sufficient to render the offense
a violent felony[,]” and finding that Florida’s “decision to
punish some forms of vehicular flight more seriously than others
has little bearing on the analysis”), cert. denied, 133 S. Ct.
207 (2012). We agree and conclude that Scott’s violation of
North Carolina’s fleeing to elude arrest statute was properly
classified as a crime of violence, even after Begay.
We last conclude that the district court’s 156-month
sentence is substantively reasonable. Because the 156-month
sentence was within Scott’s 151-to-188-month Guidelines range,
we presume on appeal that the sentence is reasonable. See
Mendoza-Mendoza, 597 F.3d at 217 (“[W]e may and do treat on
appeal a district court’s decision to impose a sentence within
the Guidelines range as presumptively reasonable.”). In an
apparent attempt to rebut the presumption afforded his within-
Guidelines sentence, Scott asserts that because he was held
accountable for only 10.7 grams of cocaine base, had it not been
for his career offender status, his Guidelines range would have
been thirty-to-thirty-seven months. Thus, Scott asserts that
his thirteen-year sentence “is simply not proportionate to [his]
crime.” Because Scott’s criminal history drove his Guidelines
range, we reject his argument. Moreover, because the district
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court specifically addressed several § 3553(a) factors before
imposing Scott’s sentence, and explicitly tied them to Scott’s
case, we affirm the 156-month sentence. See United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (“A defendant
can only rebut the presumption by demonstrating that the
sentence is unreasonable when measured against the § 3553(a)
factors.”) (brackets omitted).
Based on the foregoing, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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