United States v. Karl Butler ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4352
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KARL ANTHONY BUTLER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:11-cr-00329-D-1)
Submitted: December 18, 2012 Decided: January 8, 2013
Before AGEE, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven R. Kiersh, KIERSH LAW OFFICE, Washington, D.C., for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Karl Anthony Butler pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006). The district court designated Butler an
armed career criminal, 18 U.S.C. § 924(e) (2006), and also
upwardly departed from the Guidelines established in the
presentence investigation report (“PSR”) on account of Butler’s
extensive criminal history. The district court sentenced Butler
to 240 months in prison. Butler appeals, asserting that the
district court erred by sentencing him as an armed career
criminal. Finding no error, we affirm Butler’s sentence.
In the presentence investigation report (“PSR”), the
probation officer recommended that Butler be sentenced as an
armed career criminal as defined in U.S. Sentencing Guidelines
Manual § 4B1.4(a) (2011), finding that Butler had at least three
prior crimes of violence—namely, five prior convictions for
felony common law robbery and one conviction for felony
possession with intent to sell and deliver cocaine. At
sentencing, in opposing the district court’s proposed upward
departure, counsel for Butler did not object to Butler’s
designation as an armed career criminal, and in fact
affirmatively asserted that the armed career criminal
designation and mandatory minimum sentence appropriately
reflected Butler’s prior criminal history.
2
On appeal, Butler first asserts that the district
court erroneously categorized him as an armed career criminal.
Specifically, Butler contends that the offense of common law
robbery, as defined in North Carolina, is not a predicate
offense for enhancement under the Armed Career Criminal Act
(“ACCA”). In addition, Butler argues that his prior convictions
from more than fifteen years ago were improperly considered as
predicate offenses under the ACCA. Butler therefore contends
that the court improperly classified him as an armed career
criminal.
The Government argues that Butler waived his challenge
to the armed career criminal designation and, in any event, did
not demonstrate that his sentence should be vacated under plain
error review. We agree with the Government that Butler has
waived any challenge to the armed career criminal designation.
“[W]aiver is the intentional relinquishment or abandonment of a
known right,” and extinguishes potential error. United
States v. Olano, 507 U.S. 725, 733-34 (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, Butler, through counsel, failed to object, in
the PSR or at sentencing, to his armed career criminal
3
designation. More significantly, in arguing against an upward
departure, counsel concurred that Butler was properly classified
as an armed career criminal, stating, “We think the Guidelines
sentencing with the armed career criminal is an appropriate
level for what he has done, what he’s been convicted of,” and
“The base offense level that he got for armed career criminal
has taken into account his record . . . .” We conclude that
counsel’s statements at sentencing constitute a waiver of the
issue, 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. *
We also reject Butler’s claim that his convictions
from more than fifteen years ago were improperly considered in
determining his ACCA status. In United States v. Presley, 52
F.3d 64, 69-70 (4th Cir. 1995), we held that there is no
temporal restriction on prior felony offenses for purposes of
the ACCA. Presley, 52 F.3d at 69-70. Therefore, the fact that
all of Butler’s common law robbery convictions were fifteen
*
Butler here is “deemed bound by the acts of his
lawyer-agent.” New York v. Hill, 528 U.S. 110, 114-15 (2000)
(internal quotation marks omitted). Further, even if the law
were otherwise, it is quite clear that the district court did
not commit plain error in relying on Butler’s predicate
convictions to sentence him as an armed career criminal.
4
years old or older at the time of Butler’s sentencing is of no
legal significance.
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
this court and argument would not aid the decisional process.
AFFIRMED
5