United States v. Musick

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4089
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLTON PARLEY MUSICK, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cr-00077-1)
Submitted: July 22, 2008 Decided: August 15, 2008
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Miller A. Bushong, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlton Parley Musick, Jr., pled guilty to distribution
of more than five grams of cocaine base (crack), and was sentenced
to a term of sixty-three months imprisonment. Musick appeals his
sentence, contending that the district court incorrectly calculated
his criminal history under U.S. Sentencing Guidelines Manual
§§ 4A1.1, 4A1.2 (2007), but conceding that the error, if any, did
not affect his criminal history category. We affirm.
Musick received three criminal history points for a
suspended sentence of one to five years imprisonment, with one year
of probation, imposed on April 20, 2001, for conspiracy to commit
a felony, because his probation was revoked on February 21, 2002,
after he admitted committing additional property crimes in the
latter part of 2001. Upon revocation, the original sentence was
imposed. Musick received two criminal history points for a one-
year suspended sentence for petit larceny, with one year of
probation, which was also revoked on February 21, 2002, based on
the same admission of additional criminal conduct. In this case
also, the original sentence was imposed. At the sentencing hearing
in December 2007, defense counsel acknowledged that, even if
Musick’s argument had merit, correction of his criminal history
score would leave him in the same category, and the objection was
“an academic issue.”
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The court found, first, that the prior sentences in
question were properly counted separately because there was an
intervening arrest. The court also considered the effect of
§ 4A1.2(k) and Application Note 11, which deal with revocation
sentences, and neither of which were affected by 2007 amendments to
§ 4A1.2.
The court noted a split in the circuits over how to
interpret the second paragraph of Application Note 11, which
states: “Where a revocation applies to multiple sentences, and
such sentences are counted separately under § 4A1.2(a)(2), add the
term of imprisonment imposed upon revocation to the sentence that
will result in the greatest increase in criminal history points.”
Compare United States v. Streat, 22 F.3d 109, 111-12 (6th Cir.
1994) (treating revocation as single action applied to all prior
suspended sentences), and United States v. Flores, 93 F.3d 587,
591-92 (9th Cir. 1996) (same), with United States v. Norris, 319
F.3d 1278, 1285-88 (10th Cir. 2003) (holding that where state court
imposed multiple sentences on revocation of probation, to be served
either consecutively or concurrently, Note 11 is inapplicable and
criminal history is calculated solely under § 4A1.2(k)). The court
followed Norris and determined that Musick’s criminal history was
properly calculated in the presentence report.
Musick contends that the district court erred in
following Norris and rejecting the Sixth Circuit’s interpretation
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of Application Note 11 in Streat. When the resolution of an issue
involves primarily the legal interpretation of a guideline, it is
reviewed de novo. United States v. Kinter, 235 F.3d 192, 195 (4th
Cir. 2000). Even assuming, without deciding, that Musick is
correct and the district court erred in refusing to reduce his
criminal history score by one point, the error, if any, had no
practical effect on his sentence. Therefore, we conclude that we
need not decide in this case the issue which has given rise to the
circuit split.
Accordingly, we affirm the sentence imposed by the
district court. 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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