United States v. Polk , 281 F. App'x 195 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5052
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY RAY POLK,
Defendant - Appellant.
No. 07-5063
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY RAY POLK,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:07-cr-00063-JAB-1; 1:07-cr-00169-JAB-2)
Submitted: May 30, 2008 Decided: June 13, 2008
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Todd A. Smith, LAW FIRM OF TODD A. SMITH, Graham, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, David
P. Folmar, Jr., Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Timothy Ray Polk pled guilty to possession of a firearm
by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and conspiracy
to distribute fifty grams or more of cocaine base (crack), 21
U.S.C.A. § 846 (West 1999 & Supp. 2007).* He received a sentence
of 235 months for the drug offense and a concurrent sentence of 120
months, the statutory maximum, for the firearm offense. Polk
appeals his sentence, challenging the district court’s
determination that he qualified for sentencing as a career offender
under U.S. Sentencing Guidelines Manual § 4B1.1 (2006). He also
contends that the sentence was unreasonable. We affirm.
Polk argues that his 1993 North Carolina assault
conviction should not be treated as a predicate felony conviction
for career offender status because, while the maximum sentence at
the time he was convicted and sentenced was two years imprisonment,
a change in the law the following year reduced the maximum sentence
to 150 days. For career offender purposes, a “prior felony
conviction” is any prior conviction “punishable by death or
imprisonment for a term exceeding one year,” even if the offense is
not designated as a felony. USSG § 4B1.2, comment. (n.1). Polk
objected to his career offender status on this ground in the
*
These offenses were charged in two separate indictments. The
firearm offense was Count Three charged in Indictment No. 1:07-cr-
63-1; the crack offense was the second object of the conspiracy
charged in Indictment No. 1:07-cr-169-2.
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district court, but at sentencing he acknowledged that settled
Fourth Circuit law did not support his position. See United States
v. Harp, 406 F.3d 242, 245 (4th Cir. 2005) (citing United States v.
Johnson, 114 F.3d 435, 444-45 (4th Cir. 1997) (holding that
determination of whether prior conviction was punishable by term of
imprisonment exceeding one year is governed by law in effect on
date of conviction)); United States v. Carter, 300 F.3d 415, 427
(4th Cir. 2002). On appeal, Polk urges us to reconsider the issue.
However, a panel of this court may not overrule a decision by a
prior panel. Only the Supreme Court or an en banc decision by this
court may do that. United States v. Chong, 285 F.3d 343, 346-47
(4th Cir. 2002).
Next, Polk contends that his sentence was unreasonable
because the district court declined to vary below the guideline
range and did not adequately explain its decision. Appellate
courts review sentences for reasonableness, applying an abuse of
discretion standard. Gall v. United States, 128 S. Ct. 586, 597-98
(2007); United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir.
2007). When sentencing a defendant, a district court must: (1)
properly calculate the guideline range; (2) determine whether a
sentence within that range serves the factors set out in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2007); (3) implement
mandatory statutory limitations; and (4) explain its reasons for
selecting a sentence. Pauley, 511 F.3d at 473. In the Fourth
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Circuit, “[a] sentence within the proper Sentencing Guidelines
range is presumptively reasonable.” United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 127 S.
Ct. 2456, 2462-69 (2007) (upholding presumption of reasonableness
for within-guidelines sentence). This presumption can only be
rebutted by showing that the sentence is unreasonable when measured
against the § 3553(a) factors. United States v. Montes-Pineda, 445
F.3d 375, 379 (4th Cir. 2006).
Here, the district court correctly calculated the
guideline range, treated the guidelines as advisory, and considered
the § 3553(a) factors generally. The court specifically considered
“the nature and circumstances of the offense” and Polk’s “argument
as to his history and characteristics,” 18 U.S.C.A. § 3553(a)(1),
as well as his argument concerning disparity in sentencing, id. at
§ 3553(a)(6). The court then imposed concurrent prison terms of
235 months, the bottom of the guideline range for one count, and
ten years, the statutory minimum, for the second count. We
conclude that the sentence is reasonable.
We therefore affirm the sentence imposed by the district
court. 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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