United States v. Clark

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4603
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH ANTHONY CLARK, a/k/a Pepe, a/k/a Joseph Louis Clark,
a/k/a Joseph Clark,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:06-cr-00231-WLO)
Submitted: February 22, 2008 Decided: March 3, 2008
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
A. Wayne Harrison, Sr., LAW OFFICES OF A. WAYNE HARRISON,
Greensboro, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Sandra J. Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Anthony Clark pled guilty to conspiracy to
distribute five kilograms or more of cocaine, in violation of 21
U.S.C. § 846 (2000). The district court sentenced him as a career
offender to 360 months of imprisonment, the bottom of the advisory
sentencing guideline range. Clark appeals his sentence,
challenging his career offender designation, the imposition of an
obstruction of justice enhancement, the absence of an acceptance of
responsibility adjustment, and the reasonableness of his sentence.
We affirm.
Appellate courts review sentences imposed by district
courts for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 128 S. Ct. 586, 597-98 (2007);
United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007).
When sentencing a defendant, a district court must: (1) properly
calculate the guideline range; (2) determine whether a sentence
within that range serves the factors set out in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2007); (3) implement mandatory
statutory limitations; and (4) explain its reasons for selecting a
sentence. Pauley, 511 F.3d at 473; United States v. Green, 436
F.3d 449, 455-56 (4th Cir. 2006). “A sentence within the proper
Sentencing Guidelines range is presumptively reasonable.” United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v.
United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding
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presumption of reasonableness for within-guidelines sentence).
This presumption can only be rebutted by showing that the sentence
is unreasonable when measured against the § 3553(a) factors.
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006),
cert. denied, 127 S. Ct. 3044 (2007).
Clark first asserts that the district court erred in
classifying him as a career offender because his second degree
robbery conviction was one day more than fifteen years before
commencement of the instant offense and, therefore, was too old to
count as a predicate offense for career offender purposes. We
disagree. Under U.S. Sentencing Guidelines Manual (“USSG”) § 4A1.2
(2006), any sentence of imprisonment exceeding one year and one
month that resulted in the defendant being incarcerated for a
period of time within fifteen years of the commencement of the
instant offense may be properly considered in designating a
defendant as a career offender. USSG § 4A1.2(e)(1); USSG § 4B1.2
cmt. n.3 (stating that § 4A1.2 applies to counting of convictions
under § 4B1.1). In calculating the fifteen-year time period, the
guidelines direct the use of the date of a defendant’s last release
following parole revocation. USSG § 4A1.2(k)(2)(B)(I); see United
States v. Kirby, 921 F.2d 254, 256 (10th Cir. 1990) (stating that
fifteen-year period commenced on date defendant was released on
parole). Applying these standards to the facts of this case, we
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conclude that the district court properly relied on Clark’s second
degree robbery conviction to classify Clark as a career offender.*
Next, Clark asserts that he should have received a
downward adjustment for acceptance of responsibility. However, a
defendant generally is not eligible for the acceptance of
responsibility adjustment under USSG § 3E1.1 when he receives an
upward adjustment for obstruction of justice under USSG § 3C1.1.
United States v. Hudson, 272 F.3d 260, 263 (4th Cir. 2001). The
defendant has the burden of showing that his circumstances are
extraordinary. Id. We find that Clark failed to demonstrate
extraordinary facts warranting application of an acceptance of
responsibility adjustment.
Finally, Clark argues that his 360-month sentence is
unreasonable. Our review of the record leads us to conclude that
the district court did not abuse its discretion in sentencing
Clark. See Gall, 128 S. Ct. at 597-98. The court properly
calculated the guideline range, appropriately treated the
guidelines as advisory, and considered the § 3553(a) factors. See
Pauley, 511 F.3d at 473. Moreover, Clark’s 360-month sentence is
the bottom of the advisory guideline range and is below the
statutory maximum sentence of life imprisonment. See 21 U.S.C.A.
§ 841(b)(1)(A) (West 1999 & Supp. 2007). Neither Clark nor the
*
Because the district court properly classified Clark as a
career offender, his challenge to the court’s application of the
obstruction of justice enhancement is moot.
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record suggests any information so compelling as to rebut the
presumption that a sentence within the properly calculated
guideline range is reasonable. See Allen, 491 F.3d at 193. Thus,
the sentence is reasonable.
Accordingly, we affirm Clark’s sentence. 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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