United States v. Boone ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5055
REGINALD BOONE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-92-113)
Submitted: January 23, 1996
Decided: August 16, 1996
Before WILKINSON, Chief Judge, and WIDENER and
WILLIAMS, Circuit Judges.
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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
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COUNSEL
Patrick H. O'Donnell, KAUFMAN & CANOLES, Norfolk, Virginia,
for Appellant. Helen F. Fahey, United States Attorney, Laura M.
Everhart, Assistant United States Attorney, Norfolk, 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Unpublished opinions are not binding precedent in this circuit.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:
Reginald Boone appeals his sentence imposed by the district court
on remand from this court's decision in United States v. Harris, 39
F.3d 1262 (4th Cir. 1994).1 We vacate Appellant's conviction on
Count 36, affirm the remainder of Appellant's convictions, and
remand for resentencing.
Appellant first claims that the district court erred in sentencing him
as a career offender under § 4B1.1 of the Sentencing Guidelines.2
However, Appellant failed to raise this objection at either of his two
sentencing hearings. See United States v. Terry , 916 F.2d 157, 162
(4th Cir. 1990). Therefore, we review only for plain error. United
States v. Olano, 507 U.S. 725, ___, 61 U.S.L.W. 4421, 4423 (U.S.
Apr. 26, 1993) (No. 91-1306). Although Appellant points out some
ambiguity in the Presentence Report (PSR), he makes no proffer of
evidence contradicting the Government's claim that his prior felony
drug convictions are unrelated as defined by USSG§ 4A1.2(a)(2),
because they were separated from each other by an arrest. Accord-
ingly, we find no "clear" or "obvious" error in the sentencing court's
adoption of the PSR. Olano, 61 U.S.L.W. at 4424.
Appellant notes a related objection to the district court's adoption
of the PSR's criminal history calculations. However, Appellant's
career offender status sets his criminal history category at VI. See
USSG § 4B1.1. Accordingly, his appeal on this issue is mooted by
our finding that he was properly sentenced as a career offender.
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1 The facts surrounding Appellant's conviction and sentence are
detailed in Harris, and need not be repeated here.
2 United States Sentencing Commission, Guidelines Manual (Nov.
1994).
2
Finally, Appellant contends that his convictions on Counts 27 and
36 for use of a firearm during a drug trafficking crime, 18 U.S.C.A.
§ 924(c) (West Supp. 1996), are improper in light of the Supreme
Court's decision in Bailey v. United States, ___ U.S. ___, 64
U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-7448, 94-7492), which
was decided during the pendency of this appeal. As the Government
concedes in its supplemental brief, the facts underlying Appellant's
conviction on Count 36 are virtually indistinguishable from the facts
of Bailey, and Appellant's conviction was premised on a definition of
"use" expressly forbidden by the Supreme Court in that case. We find
that Bailey applies to cases on appeal; accordingly, we vacate Appel-
lant's conviction on Count 36 and remand for resentencing.3
We find meritless, however, Appellant's contention that his convic-
tion on Count 27 is improper in light of Bailey . As we noted in Appel-
lant's first appeal, an exchange of drugs for a firearm constitutes
"use." See Smith v. United States, 508 U.S. 223 (1993). We hold that
Bailey does not undermine the continuing validity of Smith. There-
fore, we affirm Appellant's conviction on Count 27.
We affirm in part, vacate in part, and remand for resentencing. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
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3 In light of our order vacating Appellant's conviction on Count 36, we
need not reach his contention that he should not have received separate,
consecutive sentences on his two § 924(c) convictions.
3