United States v. Gillespie , 406 F. App'x 749 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5134
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOYLE EDWARD GILLESPIE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., Senior
District Judge. (8:09-cr-00280-GRA-1)
Submitted: November 30, 2010 Decided: January 3, 2011
Before DUNCAN, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher R. Antley, DEVLIN & PARKINSON, P.A., Greenville,
South Carolina, for Appellant. Leesa Washington, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Doyle Edward Gillespie pled guilty to possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)
(2006). He was sentenced to forty-six months’ imprisonment.
Gillespie’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting, in his opinion,
there are no meritorious grounds for appeal but questioning
whether the sentencing court properly counted certain prior
convictions in determining Gillespie’s criminal history category
and in calculating his advisory Guidelines range. Gillespie was
notified of his right to file a pro se supplemental brief but
has not done so. The Government declined to file a response.
Finding no reversible error, we affirm.
This court reviews a sentence under a deferential
abuse-of-discretion standard. See Gall v. United States, 552
U.S. 38, 51 (2007). The first step in this review requires the
court to ensure that the district court committed no significant
procedural error, such as improperly calculating the Guidelines
range, failing to consider the 18 U.S.C. § 3553(a) (2006)
factors, or failing to adequately explain the sentence. United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). If the
sentence is procedurally reasonable, the court considers the
substantive reasonableness of the sentence, taking into account
the totality of the circumstances. Gall, 552 U.S. at 51.
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This court presumes that a sentence within a properly calculated
Guidelines range is reasonable. Rita v. United States, 551 U.S.
338, 346-56 (2007); United States v. Allen, 491 F.3d 178, 193
(4th Cir. 2007).
Gillespie’s counsel suggests the district court erred
in calculating Gillespie’s criminal history category under the
Sentencing Guidelines. Specifically, he maintains the district
court improperly counted towards Gillespie’s criminal history
points Gillespie’s prior sentences for state violations of a
protective order. In assessing a sentencing court’s Guidelines
applications, this court reviews its legal conclusions de novo
and its factual findings for clear error. United States v.
Allen, 446 F.3d 522, 527 (4th Cir. 2006).
First, Gillespie claims he should not have received
one point for the first protective order violation and then two
more points for the second protective order violation because
the offenses arose out of the same series of events and because
he was sentenced for both offenses on the same day. This
argument is without merit. The presentence report reveals
Gillespie’s two sentences were the result of two separate
arrests and therefore they were properly counted as separate
prior offenses in calculating his criminal history category.
See U.S. Sentencing Guidelines Manual (“USSG”) § 4A1.2(a)(2)
(2008) (noting that prior sentences “always” are counted
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separately if the offenses were “separated by an intervening
offense”).
Gillespie challenges the inclusion of these same
sentences on the second ground that a violation of a protective
order is not a criminal offense. This argument, too, is without
merit as the statute under which Gillespie was sentenced, Va.
Code Ann. § 16.1-253.2 (2010), defines a violation of a
protective order as a Class 1 misdemeanor, for which Gillespie
received over thirty days’ imprisonment. See also USSG
§ 4A1.2(c)(1) (sentence of thirty days or more for criminal
contempt of court, and offenses similar to it, is counted in a
defendant’s criminal history).
Gillespie’s last challenge to the inclusion of his
sentences for violations of a protective order is on the ground
that the Virginia court that accepted his guilty plea and
sentenced him for these offenses, the Virginia Juvenile and
Domestic Relations District Court (“J & D court”), lacked the
authority to impanel a jury. According to Gillespie, because
the J & D court has no authority to impanel a jury, the
inclusion of these convictions in his criminal history category
calculations violated his right to a trial by a jury and,
therefore, was inappropriate. However, as defense counsel
concedes, Gillespie was entitled to appeal any verdict issued by
the J & D court to the Virginia circuit court, where he could
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have received a de novo jury trial if he so chose. Va. Code
Ann. § 16-1-296(E) (2010). Accordingly, Gillespie’s sentences
for his violations of a protective order were properly included
in the calculation of his criminal history points.
Gillespie’s last argument is that the sentencing court
improperly treated his prior South Carolina conviction for third
degree arson as a “crime of violence,” raising his offense level
from fourteen to twenty. This court reviews de novo whether a
prior conviction qualifies as a “crime of violence” for purposes
of a sentencing enhancement. United States v. Williams, 326
F.3d 535, 537 (4th Cir. 2003).
The probation officer assessed a base offense level of
twenty under USSG § 2K2.1(a)(4)(A) because Gillespie committed
the instant offense “subsequent to sustaining one felony
conviction of either a crime of violence or a controlled
substance,” namely, third degree arson. A “crime of violence,”
as used here, see § 2K2.1 cmt. n.1, is defined in USSG
§ 4B1.2(a) as –
[A]ny offense under federal or state law, punishable
by imprisonment for a term exceeding one year, that –
(1) has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
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USSG § 4B1.2(a).
In determining whether a conviction qualifies as a
crime of violence under the Sentencing Guidelines, this court
uses the “categorical approach.” United States v. Seay, 553
F.3d 732, 737 (4th Cir.) (citations omitted), cert. denied, 130
S. Ct. 127 (2009); see also Taylor v. United States, 495 U.S.
575, 600-02 (1990). Under this approach, the court must
consider an offense “generically” — i.e., “in terms of how the
law defines the offense and not in terms of how an individual
offender might have committed it on a particular occasion.”
Begay v. United States, 553 U.S. 137, 141 (2008) (citing Taylor,
495 U.S. at 602). Thus, the court may look only to the fact of
conviction and the statutory definition of the prior offense.
Taylor, 495 U.S. at 602.
A person is guilty of third degree arson in South
Carolina when that person willfully and maliciously
(1) causes an explosion, sets fire to, burns, or
causes a burning which results in damage to a building
or structure other than those specified in subsection
(A) or (B), a railway car, a ship, boat, or other
watercraft, an aircraft, an automobile or other motor
vehicle, or personal property; or
(2) aids, counsels, or procures a burning that
results in damage to a building or structure other
than those specified in subsection (A) or (B), a
railway car, a ship, boat, or other watercraft, an
aircraft, an automobile or other motor vehicle, or
personal property with intent to destroy or damage by
explosion or fire; whether the property of himself or
another, is guilty of arson in the third degree and,
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upon conviction, must be imprisoned not less than one
and not more than ten years.
S.C. Code Ann. § 16-11-110(C) (2010). We have recently held
that the modern, generic crime of arson involves the burning of
real or personal property. United States v. Knight, 606 F.3d
171, 174 (4th Cir. 2010). Because the South Carolina arson
statute substantially corresponds to the generic, contemporary
definition of arson, we conclude that a conviction under the
statute is a crime of violence for Guidelines purposes. The
district court therefore did not err in relying on Gillespie’s
arson conviction to increase his base offense level to twenty.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Gillespie, in writing,
of his right to petition the Supreme Court of the United States
for further review. If Gillespie requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Gillespie. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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