United States v. Charles McDonald , 617 F. App'x 255 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4697
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES STEVEN MCDONALD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:13-cr-00061-F-1)
Submitted: June 30, 2015 Decided: July 14, 2015
Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Steven McDonald appeals his sentence after a jury
conviction for distributing cocaine base. On appeal, McDonald
contends his sentence is procedurally unreasonable because one of
his prior North Carolina drug convictions was not punishable by
more than one year in prison and does not qualify as a predicate
felony controlled substance offense for enhancement purposes under
U.S. Sentencing Guidelines Manual § 4B1.1 (2013); and even if he
is a career offender, his sentence at the bottom of his advisory
Guidelines range is substantively unreasonable because it is
greater than necessary to achieve the goals of sentencing under 18
U.S.C. § 3553(a) (2012). We affirm.
We review the reasonableness of a sentence for abuse of
discretion. United States v. Lymas, 781 F.3d 106, 111 (4th Cir.
2015) (citing Gall v. United States, 552 U.S. 38, 41 (2007)).
First, we consider whether the district court committed a
significant procedural error, such as improperly calculating the
advisory Guidelines range. Gall, 552 U.S. at 51. If the sentence
is procedurally reasonable, we consider whether it is
substantively reasonable, taking into account the totality of the
circumstances. Id. On appeal, we presume that a sentence within
or below a properly calculated Guidelines range is substantively
reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir.
2012). The presumption can only be rebutted by showing that the
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sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) factors. United States v. Louthian, 756 F.3d 295, 306
(4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
In determining whether the Guidelines calculation was proper,
we review the district court’s factual findings for clear error
and its legal conclusions de novo. United States v. Dodd, 770
F.3d 306, 309 (4th Cir. 2014), cert. denied, 135 S. Ct. 1514 (2015)
(citation and quotation marks omitted). “Where a Guidelines
application involves a mixed question of law and fact, the
applicable standard turns on the nature of the circumstances at
issue.” United States v. Adepoju, 756 F.3d 250, 256 (4th Cir.
2014). “If the application turns on a question of fact, the clear
error standard applies; if it turns on a legal interpretation, de
novo review is appropriate.” Dodd, 770 F.3d at 309 (citation
omitted). “A district court’s application turns primarily on fact
where . . . it depend[s] on an evaluation and weighing of the
factual details.” Id. at 309 n.3 (citation and internal quotation
marks omitted).
“Generally, we review de novo an issue of law whether a prior
offense qualifies” as a predicate “for purposes of the Guidelines’
career offender enhancement.” United States v. Carthorne, 726
F.3d 503, 509 (4th Cir. 2013), cert. denied, 134 S. Ct. 1326 (2014)
(citation omitted). “However, when a defendant has not objected
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to that classification before the district court, we review such
a question for plain error.” Id. (citations omitted).
We have reviewed the record and conclude that McDonald’s
sentence is both procedurally and substantively reasonable, and
the district court neither erred nor abused its discretion. The
probation officer determined that McDonald was a career offender
based on prior North Carolina convictions in paragraphs 29 and 30
of the presentence report. The report noted that he was sentenced
to 12 to 15 months in custody for the paragraph 29 conviction.
For the paragraph 30 conviction, the report noted that he was
sentenced to 12 to 15 months in custody, consecutive to another
conviction, suspended, and 36 months of probation. Although
McDonald was sentenced on the same day for these convictions, they
were separated by an intervening arrest.
McDonald’s counsel in the district court filed no objections
to the presentence report and conceded that he was a career
offender. McDonald filed pro se objections claiming that he should
not receive any criminal history points for the paragraph 30
conviction because he was sentenced on the same day as the
convictions in paragraphs 28 and 29, and he was not a career
offender because he did not have the requisite two prior controlled
substance offenses. The Government responded to the objection at
sentencing that the offenses were “appropriately scored separately
and considered separate predicate convictions for career offender
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purposes.” The district court properly overruled the objection.
See USSG § 4A1.2(a)(2).
McDonald never claimed in the district court that his prior
conviction in paragraph 30 was not punishable by more than one
year in prison. However, he claims for the first time on appeal
that he “was not exposed to a sentence of a year or more in prison,
but was sentenced to a term of 36 months probation for the
offense.” Moreover, he claims that the offense was a Class I
felony under North Carolina law that was not punishable by more
than one year in prison. Thus, while he concedes that his
conviction in paragraph 29 was a predicate for career offender
purposes, he contends that the paragraph 30 conviction was not.
The Government has responded that McDonald’s argument ignores
that he was also sentenced to 12 to 15 months in custody, suspended
and consecutive to another sentence, for the paragraph 30
conviction. In addition, to remove any question that the
conviction qualifies as a felony, the Government has provided the
state judgments in an addendum to its brief. The judgment for the
paragraph 30 conviction shows that it was in fact a Class G felony.
The Government notes the judgments were provided to McDonald’s
former counsel in the district court. Former counsel’s response
to McDonald’s pro se letter filed in the district court before
sentencing supports this claim.
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McDonald has moved to strike the addendum because the
judgments “were never introduced by the government in the district
court or considered by the district court at McDonald’s
sentencing.” As the Government notes, McDonald does not contest
that they are copies of public records or that they accurately
reflect his sentences. McDonald also contends that based on the
evidence before the district court at sentencing, his paragraph 30
conviction did not qualify as a predicate conviction for career
offender purposes. We disagree. McDonald never objected that his
prior conviction was a Class I felony or was otherwise not
punishable by more than one year in prison in the district court;
counsel conceded that he was a career offender; the court properly
denied the objection that he made based on the record; and the
court was permitted to accept the “undisputed portion of the
presentence report as a finding of fact.” Fed. R. Crim. P.
32(i)(3)(A); see also United States v. Revels, 455 F.3d 448, 451
n.2 (4th Cir. 2006). There was no reason for the Government to
offer the judgments into evidence, as there was no objection
calling them into question. See Fed. R. Crim. P. 32(i)(2).
“[T]he qualification of a prior conviction [as a sentencing
predicate] does not depend on the sentence [a defendant] actually
received but on the maximum sentence permitted for his offense of
conviction.” United States v. Bercian-Flores, 786 F.3d 309, 316
(4th Cir. 2015) (citations and internal quotation marks omitted).
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Thus, the fact that McDonald’s prison sentence was suspended did
not mean that his offense was not punishable by more than one year
in prison. On the other hand, the fact that he actually received
a custody sentence exceeding one year, albeit suspended, supported
the determination that the prior offense was punishable by more
than one year in prison.
Nonetheless, to remove any doubt created by McDonald’s
factual claim made for the first time on appeal that his prior
conviction was a Class I felony that was not punishable by more
than one year in prison, and because the accuracy of the state
judgments included in the addendum to the Government’s brief is
not disputed, we conclude that it is in the interest of justice to
take judicial notice of the judgments. See Fed. R. Evid. 201;
Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239-40 (4th Cir.
1989). We therefore deny McDonald’s motion to strike.
We further conclude that McDonald has failed to rebut our
presumption that his sentence is substantively reasonable. The
district court considered his arguments and imposed a sentence at
the bottom of the Guidelines range in recognition of the
significant impact resulting from his designation as a career
offender. However, the district court reasonably determined that
a significant prison term was appropriate because he had not
responded favorably to prior judicial intervention.
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Accordingly, we deny McDonald’s motion to strike and affirm
the district court’s judgment. 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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