United States v. Godfrey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4733
TERRY GODFREY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-96-73)
Submitted: March 4, 1997
Decided: March 28, 1997
Before MICHAEL and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Hunt L. Charach, Federal Public Defender, Edward H. Weis, First
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Rebecca A. Betts, United States Attorney, Philip J. Combs,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Terry Godfrey appeals from the sentence imposed by the district
court after he pled guilty to possession of stolen firearms in violation
of 18 U.S.C.A § 922(j)(1) (West Supp. 1996). We affirm.
Godfrey asserts that the district court erred in determining his base
offense level under United States Sentencing Commission, Guidelines
Manual, § 2K2.1(a)(2) (Nov. 1995), which provides for a base
offense level of twenty-four "if the defendant had at least two prior
felony convictions of either a crime of violence or a controlled sub-
stance offense." An interpretation of a guideline is reviewed de novo.
United States v. Blake, 81 F.3d 498, 503 (4th Cir. 1996). Under USSG
§ 2K2.1(a)(2), the court is instructed to count "any such prior convic-
tion that receives any points under § 4A1.1 (Criminal History Cate-
gory)." USSG § 2K2.1, comment. (n.5). Prior to this offense, Godfrey
was convicted of two counts of aggravated robbery. Because these
counts were considered to be related under USSG§ 4A1.2(2), only
one of the sentences could be counted under USSG§ 4A1.1(a). How-
ever, the second aggravated robbery sentence was correctly counted
under USSG § 4A1.1(f). Thus, the district court properly attributed to
Godfrey two prior felony convictions under USSG§§ 2K1.2 (a)(2),
4A1.1 (a) & (f).* Accordingly, we affirm Godfrey's sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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*Godfrey's reliance on the definitions in USSG § 4B1.2(3) is mis-
placed. That section, pertaining to career offenders, is not applicable to
a sentence imposed in accordance with USSG § 2K2.1(a). See United
States v. Krzeminski, 81 F.3d 681, 682-84 (7th Cir. 1996).
2