United States v. Gerard Fenner , 575 F. App'x 156 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4364
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GERARD FENNER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. W. Earl Britt,
Senior District Judge. (4:12-cr-00115-BR-1)
Submitted: May 14, 2014 Decided: June 6, 2014
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Mark R. Sigmon, GRAEBE HANNA & SULLIVAN, PLLC, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerard Fenner appeals from the seventy-eight-month
sentence imposed for being a felon in possession of a firearm
and ammunition, in violation of 18 U.S.C. §§ 922(g), 924 (2012).
On appeal, he challenges the district court’s calculation of his
criminal history score. At sentencing, Fenner agreed to drop
all objections to the Presentence Report (PSR), with the
exception of the application of a cross-reference to the crack
cocaine Guidelines, pursuant to U.S. Sentencing Guidelines
Manual §§ 2K2.1, 2X1.1 (2012). In exchange, the Government
orally agreed that the cross-reference need not be applied in
order to calculate a reasonable sentence. The parties mutually
agreed to recommend a 78-month sentence to the court. The court
granted the objection and imposed the 78-month sentence. We
vacate and remand for resentencing.
Fenner argues that that the calculation of his
criminal history points should be reexamined under United
States v. Davis, 720 F.3d 215, 216, 219-20 (4th Cir. 2013),
which held that a consolidated sentence for separate robberies
was a single sentence under North Carolina law, thereby
precluding application of the career offender Guideline. Davis
issued after Fenner was sentenced. Fenner argues that his
criminal history category of VI is no longer valid after Davis,
because he received only a single sentence on the multiple
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charges that were consolidated by the state court in a judgment
entered January 5, 2004. Thus, after Davis, the state charges
that were resolved by the January 5, 2004 consolidated judgment
may be counted as only one prior sentence.
Fenner argues that the district court committed a
second scoring error, as well, citing United States v. Martin,
378 F.3d 353 (4th Cir. 2004). The PSR revised at sentencing was
adopted by the district court and assessed two criminal history
points for an assault inflicting serious injury with an offense
date of June 23, 2008. Fenner had been found guilty of the
offense and served ninety-one days in custody. At the time of
the PSR and sentencing, this conviction was “on appeal” from
North Carolina state district court to superior court. The
misdemeanor assault charge was dismissed during Fenner’s appeal
to the superior court. We have held that any sentence on appeal
from North Carolina state district court to the superior court
should receive one criminal history point, as a sentence
“totally . . . stayed” under USSG § 4A1.2(a)(3). Martin, 378
F.3d at 358.
Fenner did not object below to either of these scoring
issues; therefore, we review his sentencing arguments for plain
error. United States v. Lynn, 592 F.3d 572, 577 (4th Cir.
2010). An error is plain when it is clear or obvious, and
affects substantial rights. Id. Even if the law at the time of
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sentencing is “settled and clearly contrary to the law at the
time of appeal,” an error need only be “plain” at the time of
appellate review. Johnson v. United States, 520 U.S. 461, 468,
(1997). Thus, even though the Davis error was not clear to the
district court at the time of Fenner's sentencing — in fact, it
was settled that the district court was correct at that time —
it is now clear and obvious that the district court erred in
counting the consolidated sentence as separate sentences.
To establish whether the Davis error affected Fenner’s
substantial rights, he must show that the error actually
affected the outcome of the proceedings, i.e., that his
“sentence was longer than that to which he would otherwise be
subject.” United States v. Angle, 254 F.3d 514, 518 (4th Cir.
2001). Fenner has demonstrated that, due to the Davis error,
his Guidelines range would have been lower had the consolidated
sentence been counted as a single sentence.
Even when plain error is established, an appellate
court may correct the error only if “not doing so would result
in a miscarriage of justice, or would otherwise seriously affect
the fairness, integrity or public reputation of judicial
proceedings.” United States v. Whitfield, 695 F.3d 288, 303
(4th Cir. 2012) (internal quotation marks omitted), cert.
denied, 133 S. Ct. 1461 (2013). We conclude that the sentencing
error at issue here meets this standard. Accordingly, the
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district court plainly erred by miscalculating the criminal
history score as it did not have the benefit of Davis.
We vacate the sentence in its entirety and remand for
new sentencing proceedings in light of Davis. * We express no
opinion on the appropriate sentence. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
VACATED AND REMANDED
*
In view of our disposition, we need not address whether
there was plain error or waiver of the claim challenging
calculation of criminal points related to the sentence on appeal
to state superior court.
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