United States v. Cofield , 259 F. App'x 575 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4502
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ARTIE COFIELD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:06-cr-00342-JRS)
Submitted: December 20, 2007 Decided: December 26, 2007
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Elliott Bruce Bender, Richmond, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Ann Reardon Gregory, Special
Assistant United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Artie Cofield appeals his conviction and sentence on a
violation of 18 U.S.C. § 922(g)(1) (2000), possession of a firearm
by a convicted felon. The district court sentenced Cofield to
fifty-five months’ imprisonment, and three years of supervised
release. Cofield appeals, challenging the district court’s
inclusion of certain prior conduct in the calculation of his
sentence. We affirm.
Cofield challenges the enhancement of his Guidelines
range based on a prior robbery conviction on the grounds that it
occurred more than fifteen years prior to the instant offense, and
because the Government failed to prove that Cofield was counseled
at a subsequent parole violation relative to that conviction, or
at other prior convictions on which he was assessed criminal
history points. We find his claims to be without merit. Contrary
to his contentions, the Guidelines specifically allow for inclusion
of any prior sentence of imprisonment exceeding one year and one
month, whenever imposed, which resulted in the defendant being
incarcerated during any part of such fifteen-year period.
Cofield’s violation of his parole on the contested robbery charge
and subsequent two-year sentence for that violation brings the
charge within the ambit of United States Sentencing Guidelines
Manual (“USSG”) § 2K2.1(4)(A) (2006). See USSG § 4A1.2. Moreover,
the burden is on the defendant to establish that he was
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uncounseled, and Cofield presented no evidence whatsoever to
support his self-serving and unsubstantiated contentions. See
United States v. Hondo, 366 F.3d 363, 365 (4th Cir. 2004); United
States v. Jones, 977 F.2d 105, 111-12 (4th Cir. 1992).
Cofield further asserts error in the inclusion of one
criminal history point for an obscene phone call conviction where
there allegedly was no proof that he had been convicted of the
charge, given that the presentence investigation report reflects
that the conviction was appealed, and does not reflect the ultimate
disposition of the appeal. We likewise reject this claim of error
because, inter alia, even without the contested point, Cofield’s
criminal history score was above the thirteen points necessary to
qualify him for a criminal history category VI.
Finally, Cofield requests the benefit of USSG Amendment
709 (Nov. 2007). As Amendment 709 is not retroactive, see USSG
§ 1B1.10, it is not applicable to Cofield’s sentence.
Accordingly, we affirm Cofield’s conviction and 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
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