United States v. Early , 374 F. App'x 422 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4775
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT DWAYNE EARLY, a/k/a Dollar Rob,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District
Judge. (7:08-cr-00041-gec-3)
Submitted: February 25, 2010 Decided: March 18, 2010
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John E. Davidson, DAVIDSON & KITZMAN, PLC, Charlottesville,
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney, Donald R. Wolthuis, Assistant United States Attorney,
Lanny A. Breuer, Assistant Attorney General, Greg D. Andres,
Acting Deputy Assistant Attorney General, Thomas E. Booth,
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury found Robert Dwayne Early guilty of one count
of conspiracy to distribute one hundred grams or more of heroin,
in violation of 21 U.S.C. § 846 (2006), one count of attempted
possession with the intent to distribute heroin and two counts
of distribution and possession with the intent to distribute
heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2006).
The district court determined that Early was a career offender
under U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1(a)
(2008) and calculated his advisory Guidelines range at 360
months to life imprisonment. After imposing a downward
departure, the district court sentenced Early to 324 months’
imprisonment. On appeal, Early contends that the district court
improperly classified him as a career offender. Specifically,
he asserts that the court improperly counted his 1988 New Jersey
conviction for possession with the intent to distribute cocaine,
an offense committed when he was seventeen, as a predicate
felony for career offender status because he did not receive an
adult sentence for that conviction. Finding no error, we
affirm.
We review the district court’s sentence, “whether
inside, just outside, or significantly outside the Guidelines
range,” under a “deferential abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 41 (2007). In conducting
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this review, we first examine the sentence for “significant
procedural error,” including “failing to calculate (or
improperly calculating) the Guidelines range.” Id. at 51. In
reviewing the district court’s application of the Sentencing
Guidelines, we review findings of fact for clear error and
questions of law de novo. United States v. Layton, 564 F.3d
330, 334 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009).
Section 4B1.1(a) of the Guidelines provides that a
defendant is a career offender if, among other conditions, he
“has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” USSG
§ 4B1.1(a)(3). A “prior felony conviction” is “a prior adult
federal or state conviction for an offense punishable by death
or imprisonment for a term exceeding one year, regardless of
whether such offense is specifically designated as a felony and
regardless of the actual sentence imposed.” USSG § 4B1.2, cmt.
n.1 A conviction for an offense committed before age eighteen
is “an adult conviction if it is classified as an adult
conviction under the laws of the jurisdiction in which the
defendant was convicted.” Id.
In this case, when Early was seventeen years old, he
was arrested, and law enforcement officials seized seventy vials
of cocaine base from him. Although his case was initially
assigned to the Family Part of the Superior Court, the state
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trial court with exclusive jurisdiction where a juvenile is
charged with an act of delinquency, see N.J. Stat. Ann.
§ 2A:4A-22(a), :4A-23(a), :4A-24(a) (West 2009), the trial court
referred Early’s case to the Criminal Division of Superior
Court, the adult criminal trial court of record, see id.
§ :4A-26 – :4A-27. Under New Jersey law, the effect of such a
referral is that the “case shall thereafter proceed in the same
manner as if the case had been instituted in that court in the
first instance.” Id. § :4A-28. Early was subsequently indicted
and pled guilty in the criminal division to felony possession of
a controlled dangerous substance with intent to distribute, in
violation of N.J. Stat. Ann. § 24:21-19a(1) (West 1987)
(repealed 1987). Under New Jersey law, then, Early was
convicted as an adult, see United States v. Moorer, 383 F.3d
164, 168-69 (3d Cir. 2004), and the 1988 conviction therefore
qualified as an “adult conviction” under USSG § 4B1.2, cmt. n.1. *
Relying on United States v. Mason, 284 F.3d 555, 561
(4th Cir. 2002) (holding that a conviction for which a juvenile
*
Insofar as Early challenges the career offender
designation on the basis that the record fails to disclose
whether he or New Jersey moved for the transfer from the family
part to the criminal division of the state superior court, Early
fails to put forth anything to overcome the presumption of
regularity afforded to official proceedings, see, e.g., USPS v.
Gregory, 534 U.S. 1, 10 (2001); Koch v. United States, 150 F.2d
762, 763 (4th Cir. 1945).
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sentence was imposed could not be a predicate conviction under
USSG § 4B1.1 (1998)), Early contends the New Jersey conviction
cannot serve as a predicate felony for career offender status
because he was ordered to serve his sentence at the New Jersey
Youth Correctional Institution Complex. However, Early fails to
establish that he received a juvenile sentence, as New Jersey
law specifically authorizes the confinement of adults less than
thirty-one years of age at that facility. See N.J. Stat. Ann.
§ 30:4-147 (West 2009). Moreover, Mason is inapposite, as that
case involved a West Virginia sentencing scheme that permits a
defendant under eighteen who is convicted as an adult to be
sentenced as a juvenile, see Mason, 284 F.3d at 561-62. New
Jersey, by contrast, has no similar scheme, see Moorer, 383 F.3d
at 168-69.
Accordingly, we conclude that the district court did
not commit procedural error in sentencing Early as a career
offender. Early raises no challenge to the substantive
reasonableness of his sentence, and we therefore affirm the
judgment of 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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