United States v. Slade , 346 F. App'x 948 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4262
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARTIS EUGENE SLADE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00324-JAB-1)
Submitted: September 28, 2009 Decided: October 13, 2009
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Scott Holmes, BROCK, PAYNE & MEECE, P.A., Durham, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Lisa B. Boggs, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Artis Eugene Slade pled guilty pursuant to a plea
agreement to possession of firearms in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) (2006).
Slade moved to withdraw his guilty plea, which the district
court denied. The court sentenced Slade as a career offender to
292 months of imprisonment. On appeal, Slade asserts that the
district court erred by denying his motion to withdraw his
guilty plea and by sentencing him as a career offender. Finding
no reversible error, we affirm.
Slade first challenges the district court’s denial of
his motion to withdraw his guilty plea on the ground that he did
not knowingly and voluntarily enter his guilty plea because the
district court failed to inform him of the statutory maximum
sentence of life imprisonment. Where, as here, Slade failed to
raise the ground he pursues on appeal in his motion to withdraw, ∗
our review is for plain error. United States v. Mescual-Cruz,
387 F.3d 1, 6-7 (1st Cir. 2004). To establish plain error,
Slade “must show: (1) an error was made; (2) the error is plain;
and (3) the error affects substantial rights.” United States v.
Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009) (reviewing
∗
Slade raised this issue in a subsequent motion to withdraw
his guilty plea, which he later withdrew from the court’s
consideration.
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unpreserved Rule 11 error). “The decision to correct the error
lies within our discretion, and we exercise that discretion only
if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 343 (internal
quotation marks omitted).
“There is no absolute right to withdrawal of a guilty
plea.” United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir.
2000) (citing United States v. Moore, 931 F.2d 245, 248 (4th
Cir. 1991)). The defendant bears the burden of showing a “fair
and just reason” for the withdrawal of his guilty plea. Fed. R.
Crim. P. 11(d)(2)(B). “[A] ‘fair and just’ reason . . . is one
that essentially challenges . . . the fairness of the Rule 11
proceeding . . . .” United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992) (en banc). An appropriately conducted Rule
11 proceeding, however, “raise[s] a strong presumption that the
plea is final and binding.” Id. With these standards in mind,
we have reviewed the record on appeal and conclude that the
district court did not commit plain error by denying Slade’s
motion to withdraw his guilty plea.
Slade also asserts on appeal that the district court
improperly sentenced him as career offender. He argues that,
because the 2003 felony conviction for possession with intent to
sell and deliver marijuana did not receive criminal history
points pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
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§ 4A1.2(a)(2)(B) (2008), it did not count as a predicate offense
for career offender purposes. We review de novo a district
court’s legal interpretation of the sentencing guidelines and
review for clear error its factual findings. United States v.
Collins, 415 F.3d 304, 315 (4th Cir. 2005).
Section 4B1.1 of the sentencing guidelines defines a
career offender as a defendant who (1) was at least eighteen
years old when he committed the instant offense, (2) is
convicted of a felony that is either a crime of violence or a
controlled substance offense, and (3) “has at least two prior
felony convictions of either a crime of violence or a controlled
substance offense.” USSG § 4B1.1(a). “[T]wo prior felony
convictions” means that Slade committed the § 924(c) offense
after being convicted of “at least two felony convictions of
either a crime of violence or a controlled substance offense
. . . , and . . . the sentences for at least two of the
aforementioned felony convictions are counted separately under
the provisions of § 4A1.1(a), (b), or (c).” USSG § 4B1.2(c).
“The provisions of § 4A1.2 . . . are applicable to the counting
of convictions under § 4B1.1.” USSG § 4B1.2 cmt. n.3; United
States v. Mason, 284 F.3d 555, 558 (4th Cir. 2002).
The guidelines provide for the assessment of “2 points
for each prior sentence of imprisonment of at least sixty days
not counted in (a),” USSG § 4A1.1(b), and for the assessment of
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“1 point for each prior sentence not counted in (a) or (b), up
to a total of 4 points,” USSG § 4A1.1(c). “The term ‘prior
sentence’ means any sentence previously imposed upon
adjudication of guilt . . . for conduct not part of the instant
offense.” USSG § 4A1.2(a)(1). The guidelines also explain how
to treat multiple prior sentences:
Prior sentences always are counted separately if the
sentences were imposed for offenses that were
separated by an intervening arrest (i.e., the
defendant is arrested for the first offense prior to
committing the second offense). If there is no
intervening arrest, prior sentences are counted
separately unless (A) the sentences resulted from
offenses contained in the same charging instrument; or
(B) the sentences were imposed on the same day. Count
any prior sentence covered by (A) or (B) as a single
sentence. . . .
For purposes of applying § 4A1.1(a), (b), and (c), if
prior sentences are counted as a single sentence, use
the longest sentence of imprisonment if concurrent
sentences were imposed. If consecutive sentences were
imposed, use the aggregate sentence of imprisonment.
USSG § 4A1.2(a)(2).
Applying these guidelines to Slade’s case, the 2003
controlled substance offense and the stolen goods offense were
counted as a single sentence because there was no intervening
arrest and the sentences were imposed on the same day. Where
the offenses constituted a single sentence and consecutive
sentences were imposed, the district court was required to look
at the aggregate sentence of imprisonment imposed--ninety days.
That sentence of imprisonment required the district court to
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assess two criminal history points for the single sentence under
USSG § 4A1.1(b). The prior single sentence received two
criminal history points, was counted under the guidelines, and
involved a controlled substance offense, thereby qualifying as
the second predicate offense needed to classify Slade as a
career offender. We therefore conclude that the district court
properly relied on the 2003 drug offense to find that Slade was
a career offender.
Accordingly, we affirm the district court’s judgment.
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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