United States v. Kirkland

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4890
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER BRIAN KIRKLAND,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:05-cr-00254)
Submitted: April 26, 2007 Decided: April 30, 2007
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Asheville, North Carolina, for Appellant. Gretchen C.F. Shappert,
United States Attorney, Corey F. Ellis, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Brian Kirkland pled guilty to possession of
a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and
was sentenced to a term of seventy-seven months imprisonment.
Kirkland appeals his sentence, contending that the district court
erred when it held that he had two prior convictions for controlled
substance offenses and applied a base offense level of 24 under
U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) (2005). We affirm.
The enhanced base offense level applies if the defendant
had two prior felony convictions for controlled substance offenses
as defined in USSG § 4B1.2(b), which includes “the possession of a
controlled substance (or a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense.” After
examining the charging documents and the judgment in each case, the
district court determined that Kirkland had two prior convictions
for possession with intent to sell or deliver cocaine in violation
of N.C. Gen. Stat. § 90-95(a) (2005).
Although Kirkland argues on appeal that the convictions
were for simple possession, or that the charging documents did not
establish the offense of conviction with enough specificity, or
that the offenses should have been treated as misdemeanors because
the quantity of cocaine was small, the record supports the district
court’s determination. Moreover, the court complied with the
dictates of Taylor v. United States, 495 U.S. 575 (1990), and
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Shepard v. United States, 544 U.S. 13 (2005), in making its
determination.
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 argument would not aid the decisional process.
AFFIRMED
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