United States v. Brian Thornton , 590 F. App'x 229 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4348
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN ALLEN THORNTON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00255-CCE-1)
Submitted: December 22, 2014 Decided: January 14, 2015
Before MOTZ, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Helen L. Parsonage, ELLIOT MORGAN PARSONAGE, Winston-Salem,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, Kyle D. Pousson, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Allen Thornton pled guilty, pursuant to a
written plea agreement, to conspiracy to interfere with
interstate commerce by robbery, in violation of 18 U.S.C.
§ 1951(a) (2012), and possession of a firearm in furtherance of
a crime of violence, in violation of 18 U.S.C. § 924(c) (2012).
The court sentenced Thornton as a career offender to 250 months
in prison, a term below his advisory Guidelines range. Thornton
challenges his sentence on appeal. We affirm.
We review Thornton’s sentence for reasonableness under
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Cobler, 748 F.3d 570, 581
(4th Cir.), cert. denied, 135 S. Ct. 229 (2014). “The first
step in this review requires us to ensure that the district
court committed no significant procedural error, such as
improperly calculating the Guidelines range.” United States v.
Osborne, 514 F.3d 377, 387 (4th Cir. 2008) (internal quotation
marks and alterations omitted). We must then consider the
substantive reasonableness of the sentence, “tak[ing] into
account the totality of the circumstances.” Gall, 552 U.S. at
51. “Any sentence that is within or below a properly calculated
Guidelines range is presumptively [substantively] reasonable.
Such a presumption can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C.
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§ 3553(a) [(2012)] factors.” United States v. Louthian, 756
F.3d 295, 306 (4th Cir.) (citation omitted), cert. denied, 135
S. Ct. 421 (2014).
The U.S. Sentencing Guidelines Manual (“USSG”)
provides, in relevant part, that a defendant is a career
offender if he was at least eighteen years old at the time of
the instant offense, the instant offense is a drug felony or
crime of violence, and the defendant has at least two prior
felony convictions for drug offenses or crimes of violence. See
USSG § 4B1.1(a) (2012). Any prior sentence of imprisonment
exceeding one year and one month is counted if it resulted in
the defendant being incarcerated during any part of the fifteen
years preceding the commencement of his instant offense. USSG
§§ 4A1.2(e)(1); 4B1.2 cmt. n.3 (stating that counting provisions
of USSG § 4A1.2 are applicable to counting of convictions under
§ 4B1.1). Generally, unless a prior conviction has been
“reversed, vacated, or invalidated in a prior case,” the court
must count the conviction as a predicate conviction. United
States v. Bacon, 94 F.3d 158, 161 (4th Cir. 1996). The record
before this court establishes that Thornton’s prior convictions
satisfy the requirements for the application of the career
offender enhancement, as they resulted in his incarceration
during the fifteen-year period prior to the commencement of the
instant offense. We further conclude that Thornton has not
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rebutted the presumption of reasonableness afforded his below-
Guidelines sentence. Accordingly, we affirm the judgment of the
district court. We dispense with oral argument as the facts and
legal contentions are adequately addressed in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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