United States v. Foster ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5296
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ART DEWARREN FOSTER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:06-cr-00147-HMH)
Submitted: November 14, 2007 Decided: December 21, 2007
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael D. Brown, RAINEY & BROWN, LLC, Spartanburg, South Carolina,
for Appellant. Regan Alexandra Pendleton, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Art Dewarren Foster pleaded guilty to conspiring to
possess with intent to distribute fifty kilograms or more of
cocaine and fifty grams or more of cocaine base and was sentenced
to 210 months in prison. On appeal, Foster’s attorney has filed an
Anders brief,1 stating that there are no meritorious grounds for
appeal but raising the issue of whether the district court complied
with Fed R. Crim. P. 32(i)(3)(B) in ruling on Foster’s objection to
the Presentence Report (“PSR”). Foster has filed a pro se
supplemental brief arguing that he was improperly determined to be
a career offender. After a thorough review of the record, we
affirm.
Under Rule 32(i)(3)(B) of the Federal Rules of Criminal
Procedure, a district court must rule on objections to the PSR or
find that a ruling is unnecessary because the disputed matter will
not affect sentencing or will not be considered in sentencing.
Counsel suggests the district court erred in ruling on Foster’s
objection to his classification as a career offender by relying on
the PSR and the investigation conducted by the probation officer,
without viewing the original state court sentencing sheets.
We conclude the district court properly considered and
ruled at sentencing on Foster’s objection to career offender status
based on his 1996 convictions. Moreover, the district court did
1
Anders v. California, 386 U.S. 738 (1967).
- 2 -
not err in relying on the information contained in the PSR and the
testimony of the probation officer at sentencing. When, as here,
the district court relies on information in the PSR in making
findings, the defendant bears the burden of establishing that the
information relied on by the district court is incorrect; mere
objections are insufficient. United States v. Love, 134 F.3d 595,
606 (4th Cir. 1998). The only information in the PSR Foster
claimed was inaccurate was his date of birth. He did not dispute
that he was convicted in South Carolina’s General Sessions court
and was sentenced under South Carolina’s Youthful Offender Act.
Nor did he dispute the PSR’s recitation of the sentences imposed
and time served on those sentences. These facts, rather than
Foster’s age, were relevant to the court’s determination that the
prior convictions were predicate felonies for career offender
classification.
Career offender classification requires, among other
conditions, that the defendant has at least two prior felony
convictions for crimes of violence or drug offenses. See U.S.
Sentencing Guidelines Manual (“USSG”) § 4B1.1. The Sentencing
Guidelines define “prior felony conviction” as “a prior adult
federal or state conviction for an offense punishable by death or
imprisonment for a term exceeding one year, regardless of . . . the
actual sentence imposed.” USSG § 4B1.2, comment. (n.1).
Furthermore, “[a] conviction for an offense committed before age
- 3 -
eighteen is an adult conviction if it is classified as an adult
conviction under the laws of the jurisdiction in which the
defendant was convicted. . . .” Id.
In addition, before an adult conviction is counted for
career offender purposes, the court must consult the guidelines
provision for computing criminal history. USSG § 4B1.2, comment.
(n. 3). United States v. Mason, 284 F.3d 555, 558 (4th Cir. 2002).
Offenses committed prior to age eighteen are to be included in the
criminal history calculation if: the defendant was convicted as an
adult and received a sentence of imprisonment exceeding one year
and one month, § 4A1.2(d)(1); the defendant has an adult or
juvenile sentence to confinement of at least sixty days and was
released from such confinement within five years of his
commencement of the instant offense, § 4A1.2(d)(2)(A); or the
defendant has an adult or juvenile sentence imposed within five
years of the defendant’s commencement of the instant offense,
§ 4A1.2(d)(2)(B).
South Carolina does not consider youthful offender
convictions as either adult or juvenile; instead, it gives trial
judges the discretion to treat youthful offenders as either
juveniles or adults depending on the circumstances of the case.
S.C. Code Ann. § 24-19-50; see United States v. Pinion, 4 F.3d 941,
944 (11th Cir. 1993). Thus, proceeding under the analysis of USSG
§ 4A1.2, both Foster’s 1996 convictions are countable under
- 4 -
§ 4A1.2(d)(2)(A). Foster was released from confinement on the
armed robbery convictions on May 30, 2003. On the assault charge,
Foster’s parole was revoked on August 6, 2004, and he was ordered
incarcerated for sixty days to be served on weekends. The PSR does
not reveal when or whether this confinement ended, but at the
earliest, it was March 2005. Both of these dates are well within
five years of October 2005, the commencement of the instant
offense.2 Accordingly, the district court properly considered
Foster’s 1996 convictions as predicate felonies for career offender
purposes.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. Accordingly, we
affirm Foster’s conviction and sentence. This court requires that
counsel inform his client, in writing, of his 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
2
Because Foster actually served approximately four years on
the armed robbery convictions, his convictions arguably count
toward career offender status under USSG § 4A1.2(d)(1).
Nevertheless, because Foster’s armed robbery conviction is clearly
countable under § 4A1.2(d)(2)(A), it is unnecessary to decide
whether it is also countable under § 4A1.2(d)(1).
- 5 -
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
- 6 -