United States v. Blevins , 242 F. App'x 62 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5123
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARROLL EDGAR BLEVINS,
Defendant - Appellant.
No. 06-5124
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARROLL EDGAR BLEVINS,
Defendant - Appellant.
No. 06-5125
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARROLL EDGAR BLEVINS,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (1:06-cr-00016-jpj; 1:95-cr-00030-jct; 1:96-cr-00009-jpj)
Submitted: May 25, 2007 Decided: July 5, 2007
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David L. Harmon, Bristol, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Jennifer R. Bockhorst, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
- 2 -
PER CURIAM:
Caroll Edgar Blevins pleaded guilty to two counts of
distribution of methamphetamine in violation of 21 U.S.C
§§ 841(a)(1), 851 (West 2000 & Supp. 2006), and was sentenced to
188 months of imprisonment. (No. 06-5123). At the time he
committed the offenses, Blevins was serving two terms of supervised
release for 1996 convictions. Based on the district court’s
finding that Blevins violated conditions of his release, the
district court revoked Blevins’ supervised release and imposed
concurrent sentences of twenty-four months (No. 06-5124), and
fifty-one months (No. 06-5125). On appeal, counsel filed an
Anders1 brief, certifying that there are no meritorious issues for
appeal, but raising two sentencing issues: (1) whether Blevins’
1991 distribution conviction properly served as basis to classify
him as a career offender, and (2) whether the court erred in
denying Blevins’ motion for a downward departure. Blevins has not
filed a pro se brief although he has been advised of his right to
do so. We affirm Blevins’ convictions, supervised release
revocations, and sentences.
In the Presentence Report (PSR), prepared for sentencing
on the distribution charges, the probation officer classified
Blevins as a career offender under U.S. Sentencing Guidelines
Manual (USSG) § 4B1.1 (2005). Blevins’ career offender status was
1
Anders v. California, 386 U.S. 738 (1967).
- 3 -
based on a 1991 conviction for distribution of cocaine and his 1996
conviction for conspiracy to distribute methamphetamine. Based on
a base offense level of thirty-four and a three-level adjustment
for acceptance of responsibility under USSG § 3E1.1, Blevins’ total
offense level was thirty-one. With this offense level and a
criminal history category of VI, Blevins’ advisory sentencing range
was 188 to 235 months of imprisonment.
At sentencing on the distribution counts, Blevins argued
that the court should depart from the advisory sentencing
guidelines range. The district denied the request and imposed a
188-month sentence. Also, upon its finding that Blevins violated
the conditions of his supervised release, the court imposed an
aggregate 51-month sentence, to be served consecutively to the
sentence imposed on the distribution violations, for a total
sentence of 239 months of imprisonment.
Career Offender Status
Pursuant to USSG § 4B1.1 (2005), a defendant is a career
offender if “(1) the defendant was at least eighteen years old at
the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.” USSG
§ 4B1.1(a). Blevins claims that the district court erred in
- 4 -
treating his 1991 conviction as a predicate offense for purposes of
classifying him as a career offender because the interval between
his August 6, 1991, guilty plea on the cocaine distribution charge
and his August 16, 2006, guilty plea to the current charges, was
greater than fifteen years.2 However, for the purpose of counting
a defendant’s prior felony convictions under § 4B1.1 (career
offender provision), the guidelines direct a sentencing court to
look to the provisions of § 4A1.2. See USSG § 4B1.2. comment
(n.3). Under USSG § 4A1.2(e)(1), a sentence of imprisonment
exceeding one year and one month is counted for purposes of
criminal history calculations if the prior sentence was imposed
within fifteen years of the current offense or if the prior
sentence “resulted in the defendant being incarcerated during any
part of the fifteen-year period.” In this case, Blevins was
incarerated pursuant to the 1991 distribution conviction until
September 24, 1993 and his present offenses occurred in October and
December of 2005. Therefore, because the sentence imposed on
Blevins’ 1991 conviction extended into the fifteen-year period
preceding the instant offense, the 1991 conviction properly served
a basis for the career offender enhancement.
2
While Blevins uses his 2006 guilty plea date for purposes of
calculating the fifteen-year window, USSG 4A1.2(e) refers to the
“commencement of the instant offense.” In this case, the offenses
occurred on October 25, 2005, and December 15, 2005.
- 5 -
Downward Departure
Counsel also argues that the district court should have
granted his motion for a downward departure based on the relatively
small quantity of drugs involved in the offenses and also because
application of the enhancement had an unwarranted Draconian
effect.3 This court lacks the authority to review the denial of a
motion for a downward departure unless the district court
mistakenly believed it lacked the power to depart. United
States v. Cooper, 437 F.3d 324, 333 (3d Cir. 2006) (collecting
cases from five circuits discussing rule post-Booker); United
States v. Quinn, 359 F.3d 666 , 682 (4th Cir. 2004) (citing United
States v. Bayerle, 898 F.2d 28, 30 (4th Cir. 1990), and stating
rule in this Circuit pre-Booker). Here, the district court did not
express any doubt about its ability to depart from the
guideline—indeed, the court considered these very arguments as to
why a downward departure was appropriate and denied the request.
This claim is, therefore, unreviewable.
In accordance with Anders, we have thoroughly examined
the entire record for any potentially meritorious issues and have
found none. Accordingly, we affirm Blevins’ convictions and
sentence. This court requires that counsel inform Blevins, in
writing, of his right to petition the Supreme Court of the United
States for further review. If Blevins requests that a petition be
3
In the absence of the career offender provisions, Blevins
would have had an advisory guidelines range of eighteen to twenty-
four months of imprisonment on the methamphetamine distribution
conviction.
- 6 -
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 Blevins. 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
- 7 -