United States v. Keith Jones , 496 F. App'x 312 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4169
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH ANTOINE JONES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cr-00441-WDQ-1)
Submitted: October 26, 2012 Decided: November 7, 2012
Before WILKINSON, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sicilia Chinn Englert, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Christopher J. Romano, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Antoine Jones appeals the 188-month armed career
criminal sentence imposed after he pled guilty to possession
with intent to distribute 100 grams or more of heroin, in
violation of 21 U.S.C. § 841(a)(1) (2006), and possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1)
(2006). Jones asserts that the district court plainly erred in
relying on the presentence report (“PSR”) to conclude that his
2001 and 2004 drug distribution convictions involved cocaine and
qualified as predicate convictions under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (2006). ∗ The
Government argues that Jones waived his challenge to the armed
career criminal designation and, in any event, did not
demonstrate his sentence should be vacated under plain-error
review. We affirm.
We agree with the Government that Jones has waived any
challenge to the armed career criminal designation. “[W]aiver
is the intentional relinquishment or abandonment of a known
∗
Jones does not challenge on appeal the district court’s
reliance on his resisting arrest conviction, acknowledging that
it was categorically a violent felony under the ACCA. See
United States v. Jenkins, 631 F.3d 680, 685 (4th Cir. 2011).
Nor does Jones challenge his classification as a career
offender, which, in the absence of the armed career criminal
designation, resulted in a Guidelines range of 188 to 235
months, the same range that applied to his armed career criminal
status.
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right” and extinguishes potential error under Fed. R. Crim. P.
52(b). United States v. Olano, 507 U.S. 725, 733 (1993)
(internal quotation marks omitted). “When a claim of . . .
error has been waived, it is not reviewable on appeal.” United
States v. Claridy, 601 F.3d 276, 284 n.2 (4th Cir.), cert.
denied, 131 S. Ct. 259 (2010).
Here, the plea agreement and the transcript of the
plea hearing indicate that Jones and his counsel intended to
challenge the armed career criminal designation at the
sentencing hearing. Before the hearing, defense counsel
conceded in the sentencing memorandum that Jones qualified as an
armed career criminal based on Jones’ prior convictions for
resisting arrest and distribution of cocaine. United States v.
West, 550 F.3d 952, 958-59 (10th Cir. 2008) (holding that
affirmative concession in district court that prior conviction
was predicate offense for ACCA purposes waived argument on
appeal), overruled on other grounds as recognized by United
States v. Smith, 652 F.3d 1244, 1246 (10th Cir. 2011); see
United States v. Taylor, 659 F.3d 339, 348 (4th Cir. 2011)
(“[T]he defendant is deemed bound by the acts of his lawyer-
agent.”) (internal quotation marks omitted), cert. denied, 132
S. Ct. 1817 (2012). Moreover, although counsel did object to
the armed career criminal designation at sentencing, he
specifically challenged only the resisting arrest conviction.
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United States v. Horsfall, 552 F.3d 1275, 1283 (11th Cir. 2008)
(concluding that defendant’s withdrawal of objection to sentence
enhancement precluded appellate review of enhancement). By
failing to argue at sentencing that the 2001 and 2004 drug
offenses did not qualify as ACCA predicate convictions while
challenging his armed career criminal status on another ground,
we conclude that Jones waived his right to challenge his prior
drug convictions in this appeal and, therefore, we decline to
review his claims for error — plain or otherwise. See Olano,
507 U.S. at 733; Claridy, 601 F.3d at 284 n.2.
Accordingly, 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 the
court and argument would not aid the decisional process.
AFFIRMED
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