United States v. Patrick , 232 F. App'x 330 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4920
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARVIN EDWARD PATRICK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (2:05-cr-00016-D-ALL)
Submitted: June 4, 2007 Decided: July 10, 2007
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Terry F. Rose, Smithfield, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P.
May-Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marvin Edward Patrick appeals his conviction and life
sentence following a jury trial for possession with intent to
distribute more than fifty grams of cocaine base. For the reasons
discussed below, we affirm.
Patrick was convicted on February 26, 1996, in the
Superior Court of Currituck County, North Carolina, of possession
with intent to distribute cocaine and again on May 6, 2002, of
possession of a Schedule II controlled substance. The 1996
conviction was a Class H felony, and Patrick was sentenced to
eleven to fourteen months in prison. The 2002 conviction was a
Class I conviction, and while Patrick was sentenced to nine to
eleven months is prison, under North Carolina law his conviction
was punishable by up to fifteen months in prison. See N.C. Gen.
Stat. §§ 90-95(a)(3) and (d)(2); § 15A-1340-17(d)(2005). The
Government filed a notice of its intent to seek an enhanced penalty
based upon Patrick’s prior state felony drug convictions. Before
sentencing, Patrick filed objections and a response to the
Government’s notice to enhance his sentence based upon his two
felony drug convictions, arguing that his sentence should not be
enhanced because he did not receive a sentence exceeding one year
on his 2002 conviction. The district court overruled the
objections, concluded that both convictions were felony drug
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offenses, and sentenced Patrick to the enhanced sentence of life
imprisonment.
The question of whether an individual has previously been
convicted of a felony is a legal determination reviewed de novo.
United States v. Haynes, 961 F.2d 50, 51 (4th Cir. 1992).
Patrick’s sole argument on appeal is that he, as an individual with
his particular characteristics, could not have received more than
one year for the 2002 drug conviction under the North Carolina
structured sentencing scheme; therefore, he asserts that offense
was not “punishable by imprisonment for a term exceeding one year.”
According to Patrick, the legal determination of whether a
conviction is punishable by imprisonment for a term exceeding one
year is directly impacted by case law beginning with Apprendi v.
New Jersey, 530 U.S. 466 (2000), and culminating with United
States v. Booker, 543 U.S. 220 (2005). Patrick asserts that those
cases define the parameters of the Sixth Amendment’s guarantee to
trial by jury as applied to sentence-enhancing facts, whether
characterized as offense elements or sentence elements.
Under the North Carolina structured sentencing scheme,
Patrick received a sentence in the presumptive range for his 2002
drug conviction. Because the offense was a Class I felony, the
aggravated minimum sentence Patrick could have received under the
structured sentencing tables was ten to twelve months’
imprisonment. See N.C. Gen. Stat. § 15A-1340.17(c) and(d). At
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sentencing for the current federal offense, however, the district
court found Patrick’s 2002 conviction was punishable by more than
one year, based on the maximum sentence that could be imposed for
that crime upon any defendant. In other words, the district court
concluded the offense was punishable by more than one year based on
the maximum aggravated sentence of fifteen months that could be
imposed under the North Carolina structured sentencing scheme for
a defendant with the worst criminal history category. This,
Patrick argues, is precisely what is prohibited by Apprendi,
Blakely and Booker.
Patrick’s argument is foreclosed by United States v.
Harp, 406 F.3d 242 (4th Cir.), cert. denied, 126 S. Ct. 297 (2005).
In Harp, the defendant argued that one of his Armed Career Criminal
Act predicate convictions (possession with intent to distribute
marijuana, a Class I felony) did not qualify as a “crime punishable
by more than one year” because the maximum “non-aggravated
punishment is only twelve months.” Id. at 245, 246. Declining to
apply an “individualized analysis,” the Court held that “to
determine whether a conviction is a crime punishable by a prison
term exceeding one year . . . we consider the maximum aggravated
sentence that could be imposed for that crime upon a defendant with
the worst possible criminal history.” Id. at 246.
Patrick complains that this interpretation mandates an
increase in punishment based not on the defendant’s actual criminal
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history, but the potential criminal history of any person in the
class of people who committed the same crime as the defendant.
Patrick relies on United States v. Plakio, 433 F.3d 692 (10th Cir.
2005), and argues that this Court should follow the Tenth Circuit’s
reasoning. In Plakio, the defendant pled guilty to being a felon
in possession, but contested the finding that he had a prior Kansas
conviction that was punishable by a term exceeding one year. Id.
at 693. Under the Kansas sentencing guidelines, without a finding
of aggravating factors, Plakio’s maximum sentence based upon his
offense severity level and his criminal history score was eleven
months. Id. at 694. Rejecting the analysis applied in Harp, the
Tenth Circuit concluded that “Plakio’s offense never qualified as
a felony for purposes of the sentencing guidelines, regardless of
state terminology, because he was never subject to a sentence
greater than a year under Kansas law.” Id. at 695. Based on
Plakio, and in light of Blakely, Patrick asserts that Harp cannot
stand.
Despite Patrick’s argument to the contrary, the law in
this Circuit is settled by Harp. Because the statutory maximum
penalty for Patrick’s prior offense exceeded one year of
imprisonment, the offense was a felony under 21 U.S.C.
§ 841(b)(1)(A) warranting the enhanced sentence.
Accordingly, we affirm Patrick’s conviction and sentence.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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