United States v. James Burton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4203
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES EDWARD BURTON,
Defendant - Appellant.
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Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (7:09-cr-00085-D-1)
________________
Submitted: November 28, 2011 Decided: February 7, 2012
________________
Before WILKINSON and DUNCAN, Circuit Judges, and Richard M.
GERGEL, United States District Judge for the District of South
Carolina, sitting by designation.
________________
Affirmed by unpublished opinion. Judge Gergel wrote the
opinion, in which Judge Wilkinson and Judge Duncan joined.
________________
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
________________
Unpublished opinions are not binding precedent in this circuit.
GERGEL, District Judge:
Appellant, James Edward Burton (“Burton”), challenges in
this appeal his sentence under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), on the basis that he did not have
three prior convictions for violent felonies. Burton did not
challenge the findings of the Presentence Report (“PSR”) that he
had three prior convictions for violent felonies, and his
attorney expressly admitted at the sentencing hearing before the
District Court that Burton had “three prior felony convictions
that qualify as predicates under 924(e).” J.A. 57. 1 The
District Court sentenced Burton to 180 months, the minimum
sentence authorized under the ACCA. Burton thereafter filed an
appeal challenging his sentence, contending for the first time,
and contrary to his counsel’s admissions in filings submitted to
the District Court and in open court, that he did not qualify as
an armed career criminal under the ACCA. We review the sentence
imposed by the District Court for “plain error” and affirm.
I.
Burton was arrested on January 2, 2009 following a traffic
stop in which an officer detected what appeared to be a
concealed weapon in Burton’s pocket, and which proved from a
1
The abbreviation “J.A.” refers to the Joint Appendix
submitted by the parties on appeal.
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search to be a loaded .32 caliber handgun. J.A. 83. Burton was
subsequently indicted by a federal grand jury on July 9, 2009
for knowingly possessing a firearm after being convicted of a
crime punishable by more than one in year in prison, in
violation of 18 U.S.C. § 922(g)(1) and § 924. Id. at 7-8. The
indictment further stated that Burton had three prior
convictions for violent felonies, making him subject to
sentencing under the ACCA. Id. at 8. The ACCA requires that
any person with three prior violent felony or serious drug
convictions serve a mandatory minimum sentence of fifteen years
on certain subsequent federal convictions. 18 U.S.C. § 924(e).
Burton subsequently pled guilty to the charge contained in
the federal indictment, and a PSR was prepared. The PSR set
forth Burton’s prior criminal convictions under North Carolina
law that included a 1970 conviction for “assault with a deadly
weapon with the intent to kill inflicting serious bodily
injury,” a 1974 conviction for first degree rape, and a 1995
conviction for second degree rape. J.A. 83-85. The PSR
described the circumstances of Burton’s second degree rape
conviction, which included the choking of the victim and the
displaying of a straight razor to coerce the victim’s
submission. Id. at 84-85. The PSR made a finding that Burton
was an armed career criminal under the ACCA because of the three
above-referenced convictions for violent felonies. Id. at 88.
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Burton did not object to any of the facts underlying the
1970, 1974, and 1995 convictions or his designation as an armed
career criminal under the ACCA as set forth in the PSR.
Instead, Burton urged the District Court in his formally filed
objections to the PSR not to make an upward departure from the
mandatory minimum sentence under the ACCA of fifteen years. Id.
at 91. A sentencing memorandum submitted by Burton’s counsel
described the 1995 second degree rape conviction as Burton’s
“most recent violent felony” and conceded that “[a]s an ‘armed
career criminal,’ Mr. Burton faces a minimum 15-year sentence.”
Id. at 42, 44. At the sentencing hearing, Burton’s counsel
acknowledged that Burton “has three prior felony convictions
that qualify as predicates under 924(e)” and “certainly” had
“prior violent felonies” making him subject to the ACCA. Id. at
57-58. Nonetheless, Burton’s counsel argued that the District
Court should sentence his client to less than the fifteen year
mandatory minimum sentence under the ACCA because Burton’s most
recent violent felony (the 1995 second degree rape conviction)
was “over 17 years ago and . . . there is nothing to indicate
that he is likely to engage in the future [in] violent conduct.”
Id. at 57. The District Court concluded that it was bound by
the mandatory minimum sentence provision of the ACCA and
sentenced Burton to 180 months in prison. Id. at 70.
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Burton timely filed this appeal. On appeal, Burton
concedes that the convictions for assault with a deadly weapon
with the intent to kill inflicting serious bodily injury and for
first degree rape are both violent felony convictions which
qualify as predicate convictions for purposes of the ACCA.
Appellant’s Br. at 8 n.1. Further, Burton does not dispute the
PSR’s description of the facts which form the basis of his
second degree rape conviction. However, Burton argues on appeal
that the District Court erred in treating his conviction for
second degree rape as a “violent felony” for purposes of the
ACCA. Id. at 11-16.
On appeal, the government argues that Burton “waived” the
right to appeal the District Court’s decision to sentence him
under the ACCA. Appellee’s Br. at 10-12. While the mere
“forfeiture” of a right allows an appellant to seek appellate
review under the plain error standard, the “waiver” of a right
prevents a party from seeking an appeal under any standard of
review. See United States v. Olano, 507 U.S. 725, 733-34 (1993)
(distinguishing between forfeiture and waiver and holding that
“[i]f a legal rule was violated during the district court
proceedings, and if the defendant did not waive the rule, then
there has been an ‘error’ within the meaning of Rule 52(b)
despite the absence of a timely objection”). This Court,
however, need not reach the question of whether Burton waived,
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or merely forfeited, the right to appeal the District Court’s
decision to sentence him under the ACCA. As discussed below,
even if Burton did not waive his right to appeal his sentence,
the District Court did not commit plain error in sentencing
Burton under the ACCA.
II.
Under plain error review, Burton has the burden of
establishing (1) an error, (2) that is plain, that not only (3)
affects his substantial rights, but also (4) seriously affects
the fairness, integrity, or public reputation of judicial
proceedings. United States v. Brack, 651 F.3d 388, 392 (4th
Cir. 2011). “An error is ‘plain’ when it is ‘obvious or clear
under current law,” meaning that the appellant must “show that
‘the settled law of the Supreme Court or this circuit
establishes’ the district court erred in imposing a sentencing
enhancement.” Id. (citation omitted).
Here, the record establishes that the District Court did
not commit plain error in classifying Burton’s second degree
rape conviction as a violent felony and sentencing Burton
pursuant to the ACCA. The PSR, in addition to describing the
violent nature of Burton’s conduct which resulted in his
conviction for second degree rape, clearly identified Burton’s
second degree rape conviction (along with his assault with a
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deadly weapon and first degree rape convictions) as a predicate
conviction for purposes of the ACCA. J.A. 88. Because Burton
did not object to this portion of the PSR, the District Court
was certainly authorized to accept this portion of the PSR as a
finding of fact. Fed. R. Crim. P. 32(i)(3) (“At sentencing, the
court: (A) may accept any undisputed portion of the presentence
report as a finding of fact.”); see also United States v.
Padron, No. 09-4486, 2010 WL 5475654, at *1 (4th Cir. Dec. 9,
2010) (holding that the District Court did not commit plain
error by accepting undisputed portions of a PSR as findings of
fact for purposes of sentencing enhancements). Furthermore,
Burton, through his counsel, affirmatively represented to the
District Court numerous times, both in writing and in open
court, that Burton had been convicted of three violent felonies
and was therefore subject to the ACCA’s 15-year mandatory
minimum prison sentence. See J.A. 42, 44, 45, 57, 91. Such
admissions by defense counsel are binding on the defendant. See
United States v. Bartram, 407 F.3d 307, 310-11 (4th Cir. 2005)
(holding that an admission by defense counsel at a sentencing
hearing regarding drug weight was binding on defendant).
Based on the foregoing, the District Court’s sentence of
Defendant under the ACCA was not plain error. Therefore, the
decision of the District Court is affirmed. This Court requires
that counsel inform his client, in writing, of his right to
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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 dispensed with oral argument for
this appeal because the facts and legal contentions were
adequately presented in the materials before the Court and
argument would not aid the decisional process.
AFFIRMED
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