United States v. Clark

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4504
JOSEPH JOEPETE CLARK, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-01-435)
Submitted: January 31, 2003
Decided: February 11, 2003
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Elizabeth Horton, HORTON and GSTEIGER, P.L.L.C., Winston-
Salem, North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Harry L. Hobgood, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CLARK
OPINION
PER CURIAM:
Joseph Joepete Clark, Jr., pled guilty to distributing 26.5 grams of
cocaine base (crack), in violation of 21 U.S.C. § 841(a), (b)(1)(B)
(2000), and was sentenced as a career offender to a term of 220
months imprisonment. U.S. Sentencing Guidelines Manual § 4B1.1
(2001). Clark contests the district court’s determination that he had
the necessary predicate convictions for a career offender sentence. We
affirm.
A defendant is a career offender if (1) he was at least eighteen
years old when he committed the instant offense, (2) the instant
offense is a felony that is either a crime of violence or a controlled
substance offense, and (3) he has at least two prior felony convictions
for either a crime of violence or a controlled substance offense. A
prior felony conviction must be "a prior adult federal or state convic-
tion for an offense punishable by death or imprisonment for a term
exceeding one year . . . ." USSG § 4A1.2, comment. (n.1). A convic-
tion sustained before age eighteen may qualify as a predicate convic-
tion "if it is classified as an adult conviction under the laws of the
jurisdiction in which the defendant was convicted." Id.
Clark had prior convictions for cocaine trafficking and for assault
with a deadly weapon inflicting serious injury. Clark argues that the
latter conviction, which he concedes was an adult conviction, may not
be used as a predicate conviction under § 4B1.1 because he received
a juvenile sentence. See United States v. Mason, 284 F.3d 555, 560
(4th Cir. 2002) (holding that adult conviction for which juvenile sen-
tence imposed may not be predicate conviction under § 4B1.1).
Mason dealt with a West Virginia sentencing scheme that permitted
a defendant under eighteen who was convicted as an adult to be sen-
tenced as a juvenile delinquent. North Carolina has no analogous stat-
utory provision. See N.C. Gen. Stat. § 7A-611 (1995) (providing for
immediate transfer to Department of Correction of juvenile convicted
of criminal offense in superior court who receives active sentence).
The assault at issue here occurred when Clark was fifteen. He was
initially charged as a juvenile, but his case was transferred to state
UNITED STATES v. CLARK 3
superior court and he was prosecuted as an adult. At age sixteen,
Clark was given a suspended sentence of 20-33 months imprisonment
with three years supervised probation and 120 days in the IMPACT
(boot camp) program. Clark’s probation was revoked a few months
later, and he served nearly two years imprisonment in the North Caro-
lina Department of Correction Western Youth Institution. Clark
acknowledges that the North Carolina statutory sentencing scheme is
not like the West Virginia statutes considered in Mason. However, he
contends that, because he served his sentence in an institution desig-
nated by the North Carolina Department of Correction as a "youth
facility" where male felons between the ages of 13 and 18 are housed
with males between the ages of 19 and 22 who have been convicted
of misdemeanors, he did not receive an adult sentence for his assault
conviction. We conclude that the North Carolina Department of Cor-
rection’s practice of housing younger inmates together and limiting
the IMPACT program to younger inmates does not convert an adult
sentence into a juvenile sentence of the kind at issue in Mason. Con-
sequently, the district court did not err in treating Clark’s assault con-
viction as a predicate conviction for career offender status.
We therefore 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 argu-
ment would not aid the decisional process.
AFFIRMED