United States v. Harrison , 261 F. App'x 499 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4520
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES MARIO HARRISON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:06-cr-00998-HFF-8)
Submitted: December 28, 2007 Decided: January 10, 2008
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Falkner Wilkes, Greenville, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Leesa Washington,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Mario Harrison appeals his 220-month sentence
imposed upon his guilty plea to conspiracy to possess with intent
to distribute and to distribute cocaine. He argues that the
district court improperly assessed criminal history points for two
prior convictions. Finding no error, we affirm.
On appeal, Harrison challenges the assessment of criminal
history points as he did at sentencing; however, his challenge
rests on an entirely different basis than his objection below.
Furthermore, Harrison challenges a criminal history point based on
his 2003 habitual traffic offender conviction, to which he did not
object below. Because Harrison raises issues for the first time on
appeal, this court’s review is for plain error. See United
States v. White, 405 F.3d 208, 215 (4th Cir.), cert. denied, 126 S.
Ct. 668 (2005). To establish plain error, Harrison must show that
an error occurred, that it was plain, and that it affected his
substantial rights. Id.Under U.S. Sentencing Guidelines Manual (“USSG”)
§ 4A1.2(c) (2006), all felony and misdemeanor offenses are counted
for purposes of calculating criminal history, except § 4A1.2(c)(1)
lists certain misdemeanor offenses counted only if the sentence is
a term of probation of at least one year or a term of imprisonment
of at least thirty days, and § 4A1.2(c)(2) lists a smaller number
of misdemeanor and petty offenses that are never counted. Although
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Harrison asserts that his 2002 conviction for driving under
suspension was not countable because it is a listed exception under
§ 4A1.2(c)(1) and no sentence or probation was imposed, nothing in
the record suggests that Harrison was assessed a criminal history
point based on the driving under suspension conviction. Harrison
had two convictions for which he was sentenced on July 17, 2002,
and received a total of one criminal history point. Harrison was
properly assessed a criminal history point for his 2002 conviction
for carrying a concealed weapon, an offense that is not listed as
an exception under § 4A1.2(c)(1) or (c)(2).
Harrison also argues that the court erred in applying one
criminal history point for his 2003 habitual traffic offender
conviction because the offense of habitual traffic offender is
similar to driving under suspension, an offense listed as an
exception under § 4A1.2(c)(1), and the record does not establish
that actual imprisonment was ordered. However, all felony offenses
are included in the calculation of criminal history. USSG
§ 4A1.2(c). A “felony offense” for sentencing purposes includes
any federal, state or local offense punishable by death or a term
of imprisonment exceeding one year, regardless of the actual
sentence imposed. USSG § 4A1.2(o). Harrison’s South Carolina law
habitual traffic offender conviction was punishable by a term of
imprisonment exceeding one year and is therefore a felony
conviction under the guidelines. See S.C. Ann. Code § 56-1-1100.
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Concluding the district court committed no error, plain
or otherwise, we affirm Harrison’s sentence. 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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