United States v. Peters

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
CHERYL DAWN MORGAN PETERS,  No. 01-4502
a/k/a Kim Collins, a/k/a Cindy
Jacobs, a/k/a Dawn Peterson, a/k/a
Cheryl Dawn May,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-00-50)
Submitted: November 30, 2001
Decided: December 18, 2001
Before NIEMEYER and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Stephen P. Lindsay, CLONINGER, LINDSAY, HENSLEY, SEAR-
SON & ARCURI, P.L.L.C., Asheville, North Carolina, for Appellant.
Robert J. Conrad, Jr., United States Attorney, Thomas R. Ascik,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
2 UNITED STATES v. PETERS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Cheryl Dawn Peters was charged with, and pled guilty, to a single
count of conspiracy to possess with intent to distribute a quantity of
methamphetamine, in violation of 21 U.S.C.A. §§ 841(a)(1), 846
(West 1999). In determining Peters’ offense level, the district court
assessed two points for a state drug conviction for possession of the
controlled substance hydrocodone. Peters’ total offense level was
thirty-one and her criminal history category III, with a resultant
imprisonment range of 136 to 168 months. The district judge sen-
tenced Peters to 135 months’ imprisonment and five years supervised
release.
Peters first claims that the district court erred in failing to reduce
her federal sentence by the seventeen months that she served in state
prison for related drug convictions. She cites to North Carolina state
law prohibiting subsequent state prosecution of drug offenses already
prosecuted in either federal or other state jurisdictions, and to federal
"Petite Policy," an internal policy enacted by the Department of Jus-
tice to prohibit similar double prosecutions. Peters claims that the fact
that she was prosecuted first in state court and served her sentence
there prior to the initiation of the federal prosecution against her is
unfair considering that the reverse would not have occurred under
North Carolina law. She therefore claims that, at a minimum, the dis-
trict court should have given her credit on her federal sentence for the
seventeen months she served in state court.
In response to Peters’ claims of unfairness made during sentencing,
the district court noted, for the benefit of the custodial authorities, the
pertinent facts. In the Judgment in a Criminal Case, the district judge
specifically called to the attention of the custodial authorities to "con-
sider [the five prior state offenses] in determining the ultimate time
[Peters is] to serve under the terms of the Judgment in this Court."
UNITED STATES v. PETERS 3
We find no error by the district court. Peters cites to no provision
in the sentencing guidelines or at law for the relief she seeks. The
United States Sentencing Guidelines contain no provision for credit
for discharged prison time. Also, the effect of N.C. Gen. Stat. § 90-97(1997) to which Peters refers, prohibits the state court of North Caro-
lina from re-prosecuting those already prosecuted through the federal
courts for the same offense. By its own terms, the statute does not
apply to this case. Moreover, this court has held that the Petite Policy
is an internal executive rule of the Department of Justice, not a law,
and it confers no substantial rights on a defendant. United States v.
Musgrove, 581 F.2d 406, 407 (4th Cir. 1978). Finally, prosecution by
both state and federal authorities of the same crime is not a violation
of constitutional law under the doctrine of dual sovereignty. United
States v. Iaguinta, 674 F.2d 260, 264 (4th Cir. 1978). Peters’ claim
of unfairness in the order in which she was prosecuted relative to the
state and federal fora has no remedy beyond that already granted her
by the district court in its suggestion to the Bureau of Prisons that she
be considered for credit for time already served in state court for
related conduct.
The second issue Peters raises on appeal is reviewed for plain error,
given Peters’ failure to object in the district court. United States v.
Olano, 507 U.S. 725 (1993). She claims that the district court erred
when it included in her criminal history calculation two points for the
state court conviction set forth in Paragraph 44 of the Presentence
Investigation Report. We find that, because the ¶ 44 offense involved
hydrocodone and the instant conviction involved methamphetamine,
the two cases are not "related" for purposes of U.S. Sentencing Guide-
lines Manual § 4A1.2(a)(2), and the district court did not clearly err
in assessing two criminal history points.
Accordingly, we affirm Peters’ conviction and sentence. We dis-
pense 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