United States v. Markeenus Wilkerson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5107
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARKEENUS CLEAVON WILKERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00032-MR-13)
Submitted: August 16, 2012 Decided: August 21, 2012
Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Amy Lee Copeland, AMY LEE COPELAND, LLC, Savannah, Georgia, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Markeenus Cleavon Wilkerson pled guilty, pursuant to a
plea agreement, to conspiracy to possess with intent to
distribute fifty grams or more of cocaine base and five
kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006). He was sentenced to 168 months’
imprisonment. Wilkerson timely appeals.
On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), conceding that there
are no meritorious issues for appeal but raising the following
questions: (1) whether Wilkerson’s guilty plea was conducted in
compliance with Fed. R. Crim. P. 11; (2) whether Wilkerson’s two
prior felony convictions were proper predicates for the career
offender Guideline; (3) whether application of the Fair
Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2327(“FSA” or “the Act”), would have resulted in a lower sentence;
and (4) whether Wilkerson’s sentence is substantively
reasonable. Wilkerson has filed a pro se supplemental brief
arguing that the magistrate judge did not comply with Rule
11(b)(3) in accepting Wilkerson’s guilty plea, and that his
sentence is substantively unreasonable because the district
court did not adequately consider sentencing disparity between
codefendants under 18 U.S.C. § 3553(a)(6) (2006). We affirm.
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First, counsel and Wilkerson both challenge the
validity of the guilty plea. Our review of the plea hearing
reveals that the magistrate judge substantially complied with
the dictates of Rule 11 in accepting Wilkerson’s plea, and we
perceive no reason to question its validity. See United
States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).
Although the magistrate judge deferred until sentencing the
determination that a factual basis existed for the plea, Rule
11(b)(3), the parties stipulated to this delay in the plea
agreement and this court has approved such a procedure. United
States v. Ketchum, 550 F.3d 363, 366-67 (4th Cir. 2008).
Therefore, we affirm Wilkerson’s conviction.
Next, we examine whether two prior convictions were
properly considered as predicates for Wilkerson’s career
offender status. “We review de novo a question concerning
whether a prior state conviction qualifies as a prior felony
conviction under the career offender provision.” United
States v. Jones, 667 F.3d 477, 482 (4th Cir. 2012). Under U.S.
Sentencing Guidelines Manual (“USSG”) § 4B1.1 (2010), a
defendant is a career offender if he was at least eighteen at
the time of the present offense, that offense is either a felony
crime of violence or a felony drug offense, and the defendant
has at least two prior felony convictions for crimes of violence
or controlled substances. Wilkerson was in his thirties at the
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time of this felony drug offense, and he had one prior North
Carolina conviction for felony possession with intent to sell
cocaine and one for felony discharging a firearm into a vehicle.
Although Wilkerson was sentenced for both convictions
on the same day, the district court correctly counted both
convictions because they were separated by an intervening
arrest. USSG §§ 4A1.2(a)(2); 4B1.2(c). The drug conviction is
a proper predicate because it was an offense punishable by
imprisonment over one year and violated a state law prohibiting
possession of a controlled substance with intent to distribute.
USSG § 4B1.2(b). Although Wilkerson was seventeen at the time
of the offense, he was convicted as an adult. USSG § 4B1.2 cmt.
n.1.
Wilkerson’s other predicate offense, felony discharge
of a firearm into an occupied vehicle, was properly counted as a
crime of violence because it “has as an element the use,
attempted use, or threatened use of physical force against the
person of another.” USSG § 4B1.2 cmt. n.1; see United States v.
Curtis, 645 F.3d 937, 940-43 (7th Cir. 2011) (finding similar
Illinois statute to be crime of violence under USSG
§ 4B1.2(a)(1)). Wilkerson was sentenced to ten years for that
offense. Accordingly, he was properly sentenced as a career
offender.
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Next, counsel questions whether application of the FSA
would affect Wilkerson’s sentence. Wilkerson’s conspiracy
offense occurred before the effective date of the Act, but he
was sentenced after that date. The Supreme Court has recently
held that the FSA’s new, lower mandatory minimums apply in the
post-Act sentencing of pre-Act criminal conduct. Dorsey v.
United States, 132 S. Ct. 2321, 2335-36 (2012). Therefore,
Wilkerson, on direct appeal, can reap any benefit conveyed by
the FSA. As counsel concedes, however, because Wilkerson’s
sentence was driven by his career offender status rather than by
21 U.S.C. § 841(b), the statutory change did not affect his
sentence.
Before the FSA, Wilkerson, charged with fifty grams or
more of cocaine base and with a 21 U.S.C. § 851 information of a
prior conviction for a felony drug offense, faced twenty years
to life under 21 U.S.C. § 841(b)(1)(A) (2006). After the Act’s
effective date, he faces ten years to life under 21 U.S.C.A.
§ 841(b)(1)(B) (West 1999 & Supp. 2012).
As a career offender, however, Wilkerson’s base
offense level was dictated by the statutory maximum applicable
to the offense. USSG § 4B1.1(b). Both before and after the
effective date of the FSA, because of his prior felony drug
conviction, Wilkerson faced a maximum sentence of life, 21
U.S.C. § 841(b)(1)(A) (2006); 21 U.S.C.A. § 841(b)(1)(B) (West
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1999 & Supp. 2012), for an offense level of 37. USSG
§ 4B1.1(b)(1). Thus, the new statute has no impact on
Wilkerson’s Guidelines range and the sentence imposed.
Finally, both counsel and Wilkerson challenge the
substantive reasonableness of Wilkerson’s sentence. We review a
sentence for reasonableness, under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). We
first review for significant procedural errors, including
whether the district court improperly calculated the Guidelines
range, failed to consider the § 3553(a) factors, based its
sentence on clearly erroneous facts, or failed to adequately
explain the sentence. Id. Only if we find a sentence
procedurally reasonable may we consider its substantive
reasonableness. United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009).
As we discussed above, the district court properly
determined Wilkerson to be a career offender, and that status
dictated both his base offense level of 37 and his criminal
history category (“CHC”) of VI. USSG § 4B1.1(b). With a three-
level deduction for acceptance of responsibility, he faced a
sentencing range of 262 to 327 months’ imprisonment. The
district court granted the Government’s motion for downward
departure, for a new range of 188 to 235 months. The court
ultimately sentenced Wilkerson below this new range, to 168
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months. In announcing sentence, the district court fully
explained its reasoning and addressed the issues raised by
counsel and by Wilkerson in his allocution. The court’s careful
attention to sentencing produced no procedural errors, and we
therefore find the sentence procedurally reasonable.
We assess the substantive reasonableness of a sentence
under the totality of the circumstances to determine whether the
district court abused its discretion in imposing a 168-month
sentence. United States v. Susi, 674 F.3d 278, 289 (4th Cir.
2012). Wilkerson’s sentence is below the recalculated
Guidelines range, and as such is presumptively reasonable. Id.Neither counsel nor Wilkerson has successfully
rebutted this presumption. Counsel concedes as much, noting
that Wilkerson received two downward departures, and that he was
sentenced within the range requested by counsel. In his pro se
brief, Wilkerson asserts that the district court did not
adequately weigh the sentencing factor set out in 18 U.S.C.
§ 3553(a)(6), “the need to avoid unwarranted sentencing
disparities among defendants with similar records who have been
found guilty of similar conduct.” The district court
specifically addressed this point at sentencing, however, noting
that any disparity in sentence between Wilkerson and his
codefendant was based on Wilkerson’s much higher CHC, even
without consideration of the career offender CHC. Thus, the
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district court clearly found warranted a certain degree of
sentencing disparity between the codefendants, but mitigated the
disparity with its departures.
Thus, we readily conclude that Wilkerson’s sentence is
both procedurally and substantively reasonable. In accordance
with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore
affirm the judgment of the district court and deny counsel’s
motion to withdraw. This court requires that counsel inform
Wilkerson, in writing, of the right to petition the Supreme
Court of the United States for further review. If Wilkerson
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may renew her
motion for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Wilkerson.
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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