United States v. Burrell , 303 F. App'x 144 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4134
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EVERETTE ANTWON BURRELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:07-cr-00240-HEH-1)
Submitted: November 24, 2008 Decided: December 16, 2008
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Robert J.
Wagner, Assistant Federal Public Defender, Richmond, Virginia,
for Appellant. Chuck Rosenberg, United States Attorney, Peter
S. Duffey, Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Everette Antwon Burrell pled guilty to distribution of
cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) (2006), and was sentenced to 160 months’ imprisonment.
Burrell asserts two sentencing errors. First, he contends that
the district court erred by finding that a Virginia court’s
sentence of boot camp for a 1993 drug conviction counted as a
“prior sentence of imprisonment” under U.S. Sentencing
Guidelines Manual (“USSG”) § 4A1.2(e) (2007), for purposes of
determining whether Burrell qualified for a sentence enhancement
as a career offender. Second, Burrell argues that his sentence
is unreasonable because it is greater than necessary and does
not serve the sentencing goals set forth in 18 U.S.C. § 3553(a)
(2006). We affirm.
We review sentences for reasonableness, under an abuse
of discretion standard. Gall v. United States, 128 S. Ct. 586,
597 (2007); United States v. Pauley, 511 F.3d 468, 473-74 (4th
Cir. 2007). This court may afford sentences that fall within
the properly calculated guidelines range a presumption of
reasonableness. Pauley, 511 F.3d at 473; see Rita v. United
States, 127 S. Ct. 2456, 2462 (2007) (upholding presumption of
reasonableness of within-guidelines sentence). This presumption
can be rebutted only by showing “that the sentence is
unreasonable when measured against the § 3553(a) factors.”
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United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (internal quotation marks and citation omitted). In
considering the district court’s application of the guidelines,
we review factual findings for clear error and legal conclusions
de novo. United States v. Allen, 446 F.3d 522, 527 (4th Cir.
2006).
When determining a defendant’s criminal history,
“[a]ny prior sentence of imprisonment exceeding one year and one
month that was imposed within fifteen years of the defendant’s
commencement of the instant offense is counted.” USSG
§ 4A1.2(e)(1). A “sentence of imprisonment” is “a sentence of
incarceration and refers to the maximum sentence imposed.” USSG
§ 4A1.2(b)(1). A defendant qualifies as a career offender if:
(1) the defendant was at least eighteen years old at
the time the defendant committed the instant offense
of conviction; (2) the instant offenses of conviction
is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
USSG § 4B1.1(a).
Before a conviction is counted for career offender
purposes, we consult the guidelines provision for computing
criminal history. USSG § 4B1.2, comment. (n.3); United
States v. Mason, 284 F.3d 555, 558 (4th Cir. 2002). As Burrell
correctly notes, if his time in boot camp did not count as a
“prior sentence of imprisonment,” then he has only one crime of
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violence or controlled substance offense for which he served a
sentence longer than one year and one month in the last fifteen
years, and should not have been sentenced as a career offender.
Though we have yet to address this specific issue, two
other Courts of Appeals have held that “time served in a boot-
camp style program counts as a form of imprisonment under the
sentencing guidelines.” United States v. Gajdik, 292 F.3d 555,
558 (7th Cir. 2002) (internal quotation marks omitted); United
States v. Brooks, 166 F.3d 723, 726 (5th Cir. 1999). In Brooks,
the Fifth Circuit noted that, under the commentary to USSG
§ 4A1.1, “confinement sentences of over six months qualify for
§ 4A1.2(b) treatment,” but “types of sentences not requiring
twenty-four hours a day physical confinement, such as probation,
fines, and residency in a halfway house” were expressly
distinguished. Brooks, 166 F.3d at 727 (internal quotation
marks omitted). The court held that “physical confinement is a
key distinction between sentences of imprisonment and other
types of sentences. The guidelines make no distinction between
offenders incarcerated primarily for rehabilitation and those
incarcerated simply to remove the offender from society.” Id.
at 726-27 (internal quotation marks and citation omitted). We
find this rationale persuasive, and therefore conclude that the
district court did not err in finding that Burrell’s sentence to
boot camp qualified as a “sentence of imprisonment” under
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§ 4A1.2(b). Therefore, Burrell was properly sentenced as a
career offender.
Burrell’s second sentencing claim also fails. In
determining an appropriate sentence, a district court “need not
robotically tick through § 3553(a)’s every subsection,” but
should “provide [this court] an assurance that the sentencing
court considered the § 3553(a) factors with regard to the
particular defendant.” United States v. Moulden, 478 F.3d 652,
657 (4th Cir. 2007) (internal quotation marks and citation
omitted). Here, the district court explained that it had
considered both the § 3553(a) factors and the advisory guideline
range. The court specifically noted that the promotion of
respect for the law and the protection of the community were of
paramount importance in this case. The court found the sentence
appropriate when viewed in light of Burrell’s repeated criminal
convictions and continued disregard for the law. Accordingly,
we find that the 160-month sentence, which is within the
properly calculated advisory guidelines range, is reasonable.
See Rita, 127 S. Ct. at 2462.
Because we reject Burrell’s challenge to his sentence,
we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately
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addressed in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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