United States v. Christopher Short ( 2011 )

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4881
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER TERRELL SHORT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.,
Senior District Judge. (1:07-cr-00084-WLO)
Submitted: April 12, 2010 Decided: October 28, 2011
Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit
Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant. Sandra Jane Hairston, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Christopher Terrell
Short pled guilty to possession with intent to distribute 1000.2
grams of cocaine hydrochloride, in violation of 21 U.S.C.
§ 841(a)(1) (2006). The district court sentenced him as a
career offender to a 190-month term of imprisonment. On appeal,
Short’s counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there were no meritorious
issues for appeal but questioning the procedural reasonableness
of Short’s sentence. Short filed a pro se supplemental brief.
In our initial opinion, we affirmed the district court’s
judgment. We previously granted Short’s petition for panel
rehearing and now affirm the conviction, vacate the sentence,
and remand for resentencing.
Although neither Short nor his counsel challenges the
adequacy of plea hearing on appeal, we have reviewed the
transcript of the plea hearing for plain error. See United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (providing
standard). Our careful review of the record convinces us that
the district court substantially complied with the mandates of
Fed. R. Crim. P. 11 in accepting Short’s guilty plea and that
any omission on the court’s part did not affect Short’s
substantial rights. Moreover, the district court ensured that
Short’s guilty plea was knowing and voluntary and supported by a
2
sufficient factual basis. See United States v. DeFusco, 949
F.2d 114, 116, 119-20 (4th Cir. 1991).
Short and his counsel question the procedural
reasonableness of Short’s sentence. We review a sentence for
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). This review requires
appellate consideration of both the procedural and substantive
reasonableness of a sentence. Id. This court assesses
procedural reasonableness by determining whether the district
court properly calculated the advisory Guidelines range,
considered the factors in 18 U.S.C. § 3553(a) (2006), analyzed
any arguments presented by the parties, and sufficiently
explained the selected sentence. Gall, 552 U.S. at 49-50; see
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).
Finally, if there is no significant procedural error, this court
reviews the substantive reasonableness of the sentence. United
States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).
Short asserts that his prior North Carolina
convictions for possession with intent to sell and deliver
cocaine were not felonies because he was subject to a maximum
sentence of less than twelve months. He therefore argues that
these prior convictions should not have been used to classify
him as a career offender. Because Short did not advance this
argument in the district court, our review is for plain error.
3
See United States v. Slade, 631 F.3d 185, 189 (4th Cir.)
(discussing standard), cert. denied, 131 S. Ct. 2943 (2011);
United States v. Knight, 606 F.3d 171, 177-78 (4th Cir. 2010)
(same).
We initially rejected Short’s challenge to his career
offender designation based upon our prior ruling in United
States v. Harp, 406 F.3d 242 (4th Cir. 2005). However, in our
recent en banc decision in United States v. Simmons, 649 F.3d
237, 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (No. 08-4475), we
overruled Harp and held that, under North Carolina’s statutory
sentencing scheme, a defendant is convicted of a crime
punishable by more than one year only if an offender with the
same prior record level and convicted of similar aggravating
factors could have received a sentence exceeding one year. Id.at *5-*9. In making this determination, a court must consider
the defendant’s particular “state record of conviction.” Id. at
*9.
The state court judgment of conviction entered against
Short indicates that his prior convictions for possession with
intent to sell and deliver cocaine were classified as Class H
felonies. In addition, Short had a prior record level of III
and was not charged with any aggravating factors. Given these
facts, Short could have been sentenced to a presumptive minimum
term of eight to ten months or a mitigated minimum term of six
4
to eight months. See N.C. Gen. Stat. § 15A-1340.17(c) (2009).
The state court applied the mitigated range, sentencing Short to
a minimum term of six months and a maximum term of eight months.
See N.C. Gen. Stat. § 15A-1340.17(d) (2009).
Applying the Simmons holding here, we conclude that
North Carolina’s statutory sentencing scheme allowed the state
court to impose a maximum possible sentence in the mitigated
range of ten months. See N.C. Gen. Stat. § 15A-1340.17(d)
(2009). Thus, neither of Short’s convictions for possession
with intent to sell and deliver cocaine qualified as a predicate
offense for career offender purposes. Because it is now clear
that Short was sentenced improperly as a career offender, 1 we
vacate his sentence and remand for resentencing. 2 See United
States v. Lewis, 606 F.3d 193, 201 (4th Cir. 2010) (“[This Court
has] emphasized that [a] sentence based on an improperly
1
The district court, of course, did not have the benefit of
our decision in Simmons at the time it sentenced Short.
2
In light of our holding, we need not address Short’s
claims that the prior convictions should have been counted as a
single sentence, that Amendment 709 to the Sentencing Guidelines
applied to his case, and that the district court failed to
adequately explain its reasons for imposing a 190-month career
offender sentence and failed to depart downward on the ground
that the career offender Guidelines range overstated Short’s
criminal history. To the extent counsel also attempts to
challenge the validity of Short’s January 31, 2001 predicate
offense, he may not do so in this appeal. See Custis v. United
States, 511 U.S. 485, 493-97 (1994).
5
calculated [G]uidelines range will be found unreasonable and
vacated.”) (internal quotation marks omitted).
In accordance with Anders, we have reviewed the entire
record for any other meritorious issues and have found none. We
therefore affirm Short’s conviction, vacate his sentence, and
remand for resentencing. This court requires that counsel
inform his client, in writing, of the right to petition the
Supreme Court of the United States for further review. If the
client 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
the client. 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 IN PART,
VACATED IN PART,
AND REMANDED
6