United States v. Billy Tesseneer ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4096
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BILLY DEAN TESSENEER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:11-cr-00029-MR-1)
Submitted: September 24, 2013 Decided: October 2, 2013
Before WILKINSON, MOTZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dianne K. Jones McVay, JONES MCVAY LAW FIRM, PLLC, Charlotte,
North Carolina, for Appellant. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Billy Dean Tesseneer pled guilty, pursuant to a
written plea agreement, to possession with intent to distribute
methamphetamine, in violation of 21 U.S.C.A. § 841(a)(1) (West
2006 & Supp. 2013). He was designated a career offender and
sentenced to 220 months’ imprisonment, a term towards the top of
his advisory Guidelines range. Tesseneer timely appealed.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), certifying that there are no
nonfrivolous grounds for appeal, but questioning Tesseneer’s
career offender designation and the reasonableness of his
within-Guidelines sentence. In his pro se supplemental brief,
Tesseneer challenges the calculation of his advisory Guidelines
range, including enhancements to his offense level and the drug
quantity attributed to him, asserts claims of ineffective
assistance of counsel, and states that he did not see the final
presentence report (“PSR”) until the day of sentencing. For the
reasons that follow, we affirm.
We review Tesseneer’s sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 46, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. We first assess
whether the district court properly calculated the advisory
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Guidelines range, considered the factors set forth in 18 U.S.C.
§ 3553(a) (2006), analyzed any arguments presented by the
parties, and sufficiently explained the selected sentence. Id.at 49–51; United States v. Lynn, 592 F.3d 572, 575–76 (4th Cir.
2010). If the sentence is free of significant procedural error,
we review the substantive reasonableness of the sentence,
“examin[ing] the totality of the circumstances to see whether
the sentencing court abused its discretion in concluding that
the sentence it chose satisfied the standards set forth in
§ 3553(a).” United States v. Mendoza–Mendoza, 597 F.3d 212, 216
(4th Cir. 2010). If the sentence is within the defendant’s
properly calculated Guidelines range, we apply a presumption of
substantive reasonableness. United States v. Bynum, 604 F.3d
161, 168-69 (4th Cir. 2010); see Rita v. United States, 551 U.S.
38, 347 (2007) (permitting appellate presumption of
reasonableness for within-Guidelines sentence).
Defense counsel questions whether the district court
erred by relying on Tesseneer’s 1992 state conviction for
possession of marijuana with intent to sell and deliver as a
predicate offense for career offender designation. To qualify
as a career offender, a defendant must have “at least two prior
felony convictions of either a crime of violence or a controlled
substance offense.” USSG § 4B1.1(a). A “prior felony
conviction” is “a prior adult federal or state conviction for an
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offense punishable by death or imprisonment for a term exceeding
one year, regardless of whether such offense is specifically
designated as a felony and regardless of the actual sentence
imposed.” USSG § 4B1.2 cmt. n.1.
Here, there is no question that the offense was
punishable by more than a year in prison, because Tesseneer was
sentenced to five years of imprisonment, although the active
sentence was initially suspended and he ultimately only served
eleven months of imprisonment. Furthermore, it is undisputed
that the conviction was for a controlled substance offense. See
USSG § 4B1.2(b) (defining “controlled substance offense”).
Counsel’s basis for questioning whether Tesseneer’s
1992 felony conviction for possession with intent to sell and
deliver marijuana supports the career offender designation is
two-fold: (1) it did not occur within fifteen years of his
instant offense and (2) Tesseneer was only incarcerated for a
total of eleven months. Despite its relative age, the 1992
marijuana conviction was properly counted. Section 4A1.2
governs whether prior felony convictions are counted under USSG
§ 4B1.1 as predicate offenses for career offender designation.
USSG § 4B1.2 cmt. n.3. A prior conviction is included as a
predicate offense for purposes of career offender designation if
the “prior sentence of imprisonment exceed[ed] one year and one
month, whenever imposed, [and] resulted in the defendant being
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incarcerated during any part of” the fifteen years preceding the
commencement of his instant offense. USSG § 4A1.2(e)(1). A
sentence of imprisonment does not include the portion of a
sentence that was suspended. USSG § 4A1.2(b)(2).
Tesseneer’s five-year prison term for his 1992
conviction was initially suspended. Thus, it would not qualify
as a “sentence of imprisonment” for purposes of career offender
designation. However, when Tesseneer’s probation was revoked,
he received an active sentence of five years’ imprisonment * and
was incarcerated until February 1994. Given that the instant
offense conduct occurred fourteen years and eleven months later,
in January 2009, Tesseneer was incarcerated for his 1992
conviction during the applicable fifteen-year look-back period.
See United States v. Hackley, 662 F.3d 671, 686 (4th Cir. 2011)
(“[A]lthough ordinarily a prior conviction only counts toward a
defendant’s criminal history if the sentence on the conviction
was ‘imposed within fifteen years of the defendant’s
commencement of the instant offense,’ convictions imposed
earlier are also counted if the sentence exceeded one year and
*
Even though Tesseneer ultimately served only eleven months
of his active five-year sentence, his “sentence of imprisonment”
is based on the pronounced sentence rather than the length of
time he served. Cf. USSG § 4A1.2 cmt. n. 2.
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one month and ‘resulted in the defendant being incarcerated
during any part of such fifteen-year period.’” (quoting USSG
§ 4A1.2(e))), cert. denied, 132 S. Ct. 2703 (2012); see also
United States v. Romary, 246 F.3d 339, 343-44 (4th Cir. 2001)
(holding that “[p]ostrevocation penalties are attributed to the
original conviction”). Accordingly, we discern no error, plain
or otherwise, in the court’s use of the 1992 conviction as a
predicate offense for purposes of career criminal designation.
We have thoroughly reviewed the record and conclude
that Tesseneer’s sentence is both procedurally and substantively
reasonable. Our review disclosed no error in the district
court’s computation of Tesseneer’s Guidelines range, including
the career offender designation, the opportunities it provided
Tesseneer and his counsel to speak in mitigation, or its
explanation of the sentence imposed by reference to the relevant
§ 3553(a) factors. In addition to noting its overall
consideration of the relevant sentencing factors, the district
court opined that the 220-month sentence was appropriate given
the seriousness of Tesseneer’s offense; Tesseneer’s recidivism
and demonstrated lack of respect for the law; and the need to
impose a just punishment that would protect the public and deter
future criminality. Finally, we have found no basis in the
record to overcome the presumption of reasonableness accorded
this within-Guidelines sentence.
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We have reviewed the issues raised in Tesseneer’s pro
se supplemental brief and find them to be without merit. In
accordance with Anders, we have reviewed the record in this case
and have found no meritorious issues for appeal. We therefore
affirm the judgment of the district court. This court requires
that counsel inform Tesseneer, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Tesseneer requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Tesseneer. 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
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