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United States v. Shakur , 7 F. App'x 289 ( 2001 )


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  •                          UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                              No. 00-4755
RAHIM WALIYY SHAKUR,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-00-72-MU)
Submitted: April 13, 2001
Decided: April 23, 2001
Before WIDENER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Marshall A. Swann, Charlotte, North Carolina, for Appellant. Mark
T. Calloway, United States Attorney, Karen E. Eady, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. SHAKUR
OPINION
PER CURIAM:
Rahim Waliyy Shakur appeals the sentence of 180 months impris-
onment and three years supervised release imposed by the district
court after his guilty plea to attempted carjacking,
    18 U.S.C.A. § 2119
    (West 2000). Shakur contends that the district court erred in refusing
to reduce the offense level under U.S. Sentencing Guidelines Manual
§ 2X1.1(b)(1) (1998), for an attempted crime, and that his total sen-
tence exceeds the statutory maximum sentence of 180 months impris-
onment. We affirm.
Shakur was unable to complete the carjacking because the victim’s
car was equipped with an anti-theft device which prevented him from
starting the engine. In sentencing Shakur, the district court refused to
make a three-level reduction under USSG § 2X1.1(b)(1), which pro-
vides for the decrease if the offense is an attempt, "unless the defen-
dant completed all the acts the defendant believed necessary for
successful completion of the substantive offense or the circumstances
demonstrate that the defendant was about to complete all such acts
but for apprehension or interruption by some similar event beyond the
defendant’s control." The district court decided that the reduction did
not apply in Shakur’s case because the victim’s activation of the anti-
theft device was the kind of event beyond the defendant’s control that
is within the scope of § 2X1.1.
The commentary to § 2X1.1 explicitly states that the reduction is
intended for cases in which the defendant is arrested well before he
has completed the acts necessary to commit the offense. Shakur had
completed all such acts. Therefore, the district court did not err in
interpreting the exception to include events beyond the defendant’s
control other than intrusion by law enforcement. See United States v.
Chapdelaine,
    989 F.2d 28
    , 35-36 (1st Cir. 1993) ("near accomplish-
ment of the criminal object normally poses enough risk of actual
harm, and reveals enough culpability . . . [to defeat] the reduction
available for conspiracies and attempts that have not progressed very
far."); accord United States v. Medina,
    74 F.3d 413
    , 418 (2d Cir.
1996).
UNITED STATES v. SHAKUR                        3
Shakur also contends that his sentence of 180 months imprison-
ment and thirty-six months supervised release exceeded the statutory
maximum sentence of 180 months imprisonment provided under
    18 U.S.C.A. § 2119
    (1). Because he did not raise the issue in the district
court, it is reviewed for plain error. United States v. Olano,
    507 U.S. 725
    , 731-32 (1993) (when issue not preserved for appeal, defendant
must show error that was plain, affected substantial rights, and seri-
ously affects the fairness, integrity, or public reputation of judicial
proceedings).
The district court accepted the parties’ stipulation that the maxi-
mum term of imprisonment authorized for Shakur’s offense was 180
months. However, supervised release is not treated as part of the
incarceration portion of a federal sentence. United States v. Richard-
son,
    233 F.3d 223
    , 231 n.10 (4th Cir. 2000), petition for cert. filed,
Mar. 19, 2001 (No. 00-9234). Consequently, a term of supervised
release may be added to any sentence of imprisonment authorized by
the applicable statute, including a maximum sentence. United States
v. Pierce,
    75 F.3d 173
    , 174 (4th Cir. 1996). The district court thus did
not plainly err in imposing a three-year term of supervised release.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED