United States v. Rahaneed Gordon , 592 F. App'x 189 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4483
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAHANEED OMAR GORDON, a/k/a Rider,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh,
District Judge. (3:13-cr-00059-GMG-JES-1)
Submitted: November 21, 2014 Decided: November 25, 2014
Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Nicolas J. Compton, Assistant Federal Public Defender,
Kristen M. Leddy, Research and Writing Specialist, Martinsburg,
West Virginia, for Appellant. Jarod James Douglas, Assistant
United States Attorney, Martinsburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rahaneed Omar Gordon appeals from his conviction for
distribution of heroin and his 188-month sentence entered
pursuant to his guilty plea. On appeal, counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
averring that there are no meritorious issues for appeal but
questioning whether Gordon’s sentence was greater than necessary
to meet the goals of sentencing. Gordon has filed a pro se
supplemental brief arguing that the district court erred in
applying the career offender enhancement. The Government has
declined to file a brief. After a close review of the record,
we affirm.
Gordon contends that the district court improperly
designated him a career offender because (1) his two predicate
convictions were vacated; (2) his 1999 conviction is too old;
(3) after both of the prior convictions were entered, he was
released quickly from prison; and (4) the Government did not
adequately prove the existence of these convictions. The
Guidelines provide that a defendant is a career offender if he
was at least eighteen years old at the time of the instant
offense, the instant offense is a drug felony or crime of
violence, and the defendant has at least two prior felony
convictions for drug offenses or crimes of violence. U.S.
Sentencing Guidelines Manual § 4B1.1(a) (2013). A prior felony
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conviction for a drug offense or crime of violence only
qualifies as a predicate offense if the sentence of imprisonment
exceeded one year and one month and was either imposed within
fifteen years of the defendant’s commencement of the instant
offense or resulted in the defendant being incarcerated during
any part of such fifteen-year period. USSG §§ 4A1.2(e)(1);
4B1.2, cmt. 3. “Sentences resulting from convictions that
(A) have been reversed or vacated because of errors of law or
because of subsequently-discovered evidence exonerating the
defendant, or (B) have been ruled constitutionally invalid in a
prior case are not to be counted.” USSG § 4A1.2, cmt. 6.
Here, the court concluded that Gordon was a career
offender based on two predicate offenses: a 1999 conviction for
attempted armed robbery (twelve year sentence) and a 2011
conviction for armed robbery (fifteen year sentence), both of
which were imposed pursuant to Gordon’s guilty pleas. Gordon’s
guilty pleas were entered after his original convictions were
overturned, and his pleas resulted in his release soon after his
convictions were entered, as his time served was sufficient or
nearly sufficient to satisfy his sentences. Nonetheless, under
the plain language of the Guidelines, Gordon was sentenced to
sentences longer than a year and a month, such sentences were
imposed within fifteen years of Gordon’s current offense
conduct, and neither conviction has been vacated or reversed.
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Thus, the district court correctly counted both these
convictions. See United States v. Battle, 499 F.3d 315, 325-26
(4th Cir. 2007) (finding “look-back” period of USSG
§ 4A1.2(e)(1) applies to the date the defendant was sentenced on
his prior conviction, not the date of his arrest); United
States v. Womack, 610 F.3d 427, 430-31 (7th Cir. 2010) (looking
to the term of imprisonment imposed, rather than the term
actually served); United States v. Adams, 403 F.3d 1257, 1260
(11th Cir. 2005) (declining to recognize an exception to look
back rule where alleged backlog in the state-court system
delayed imposition of sentence on predicate conviction).
Turning to Gordon’s assertions that the Government
failed to properly prove the existence of his predicate
convictions, Gordon did not object below to the accuracy of the
convictions themselves or to the description of the substantive
or procedural background in the presentence report (“PSR”).
Pursuant to Fed. R. Crim. P. 32(i)(3)(A), the sentencing court
“may accept any undisputed portion of the presentence report as
a finding of fact.” Even if a defendant objects to a finding in
the PSR, in the absence of an affirmative showing that the
information is not accurate, the court is “free to adopt the
findings of the presentence report without more specific inquiry
or explanation.” United States v. Love, 134 F.3d 595, 606 (4th
Cir. 1998) (internal quotation marks and alteration omitted).
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Given Gordon’s failure to object to the probation officer’s
description of his prior convictions and his related failure to
affirmatively show that the information in the PSR was
inaccurate, we find no error, let alone plain error, in the
district court’s reliance on the PSR to find the existence of
Gordon’s two predicate convictions.
Gordon next contends that his sentence is
substantively unreasonable because it is greater than necessary
to accomplish the goals of 18 U.S.C. § 3553(a) (2012), and
because the district court did not give appropriate weight to
his mitigating circumstances. We review a sentence for
reasonableness, applying “a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We
examine the substantive reasonableness of the sentence under
“the totality of the circumstances.” Id. at 51.
A sentence “within or below a properly calculated
Guidelines range is presumptively reasonable [on appeal].”
United States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert.
denied, 135 S. Ct. 421 (2014). The defendant bears the burden
to rebut this presumption “by showing that the sentence is
unreasonable when measured against the . . . § 3553(a) factors.”
Id. In evaluating the sentence for an abuse of discretion, this
court “give[s] due deference to the [d]istrict [c]ourt’s
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reasoned and reasonable decision that the § 3553(a) factors, on
the whole, justified the sentence.” Gall, 552 U.S. at 59-60.
Considering the totality of the circumstances, Gordon
cannot rebut the presumption of substantive reasonableness
accorded to his within-Guidelines sentence. To the extent
Gordon attacks the district court’s failure to give more weight
to his mitigating circumstances, the court considered Gordon’s
lengthy written and oral arguments, noted the humanitarian
concerns, but rejected his arguments after weighing them against
Gordon’s continued violent conduct, the seriousness of his past
convictions, and the seriousness of his current conviction. The
court found that the totality of the circumstances warranted the
most lenient sentence within the Guidelines range but did not
warrant a variance. Given the district court’s consideration of
the relevant § 3553(a) factors, we find that the court’s
decision was not an abuse of discretion.
In accordance with Anders, we have reviewed the entire
record in this case for meritorious issues and have found none.
Accordingly, we affirm the district court’s judgment. This
court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client 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
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withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. 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.
AFFIRMED
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