406 F.3d 242 (4th Cir. 2005), 03-4817, United States v. Harp

Docket Nº:03-4817.
Citation:406 F.3d 242
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Johnny Craig HARP, Defendant-Appellant.
Case Date:May 04, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 242

406 F.3d 242 (4th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Johnny Craig HARP, Defendant-Appellant.

No. 03-4817.

United States Court of Appeals, Fourth Circuit

May 4, 2005

Argued: March 18, 2005.

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[Copyrighted Material Omitted]

Page 244

ARGUED:

John A. Dusenbury, Jr., Assistant Federal Public Defender, Office of the Federal Public Defender, Greensboro, North Carolina, for Appellant.

Lawrence Patrick Auld, Office of the United States Attorney, Greensboro, North Carolina, for Appellee.

ON BRIEF:

Louis C. Allen, III, Federal Public Defender, Greensboro, North Carolina, for Appellant.

Anna Mills Wagoner, United States Attorney, Angela H. Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Before WILKINS, Chief Judge, and WIDENER and TRAXLER, Circuit Judges.

Affirmed by published opinion. Chief Judge WILKINS wrote the opinion, in which Judge Widener and Judge TRAXLER joined.

OPINION

WILLIAM W. WILKINS, Chief Judge:

Johnny Craig Harp appeals his sentence for using a dangerous weapon in committing a bank robbery. See 18 U.S.C.A. § 2113(d) (West 2000). We affirm.

I.

Harp pleaded guilty to the offense of conviction pursuant to a written plea agreement. The presentence report placed Harp's base offense level at 20. See United States Sentencing Guidelines Manual § 2B3.1(a) (2002). Harp received a two-level enhancement under § 2B3.1(b)(1) because the property of a financial institution was taken, and a three-level enhancement under § 2B3.1(b)(2)(E) because he possessed a dangerous weapon during the commission of the robbery. Additionally, because Harp had previously been convicted of robbery

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with a dangerous weapon and felonious possession with the intent to distribute marijuana, he was designated a career offender, and his offense level was increased to 34. See U.S.S.G. § 4B1.1. The district court reduced this offense level by three levels for acceptance of responsibility, see U.S.S.G. § 3E1.1, resulting in a total offense level of 31. Because of the career offender designation, Harp's Criminal History Category was VI, see U.S.S.G. § 4B1.1(b), producing a guideline range of 188-235 months. On the Government's motion, the district court departed downward to account for Harp's substantial assistance in the prosecution of his codefendant, see U.S.S.G. § 5K1.1, p.s., sentencing Harp to 128 months' imprisonment.

II.

Harp maintains that the district court erred in concluding that he met the requirements for designation as a career offender. Because Harp raises this claim for the first time on appeal, we review for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish plain error, Harp must show that an error occurred, that the error was plain, and that the error affected his substantial rights. See Olano, 507 U.S. at 732, 113 S.Ct. 1770. Even if Harp makes this three-part showing, correction of the error remains within our discretion, which we "should not exercise ... unless the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)) (second alteration in original).

For Harp to be designated a career offender, the Government must establish (1) that Harp was at least 18 at the time of the instant offense, (2) that the instant offense is a felony that is either a "crime of violence" or a "controlled substance offense," and (3) that Harp had at least two prior felony convictions for either a "crime of violence" or a "controlled substance offense." U.S.S.G. § 4B1.1(a). Harp concedes that the Government established the first two requirements, but he argues that one of his prior convictions considered by the district court--a July 16, 2001 North Carolina conviction for possession with the intent to distribute marijuana--was not a "controlled substance offense" because it was not "punishable by imprisonment for a term exceeding one year." U.S.S.G. § 4B1.2(b). 1 To determine whether a conviction is for a crime punishable by a term of imprisonment exceeding one year, we consider the law in effect at the time of the conviction. See United States v. Johnson, 114 F.3d 435, 445 (4th Cir.1997); see also United States v. Norris, 319 F.3d 1278, 1281-83 (10th Cir.2003) (holding, in the context of determining the sufficiency of an indictment charging possession of a firearm by a felon, that a Kansas conviction was punishable by a term of more than one year because the Kansas sentencing scheme allowed upward departure to a sentence greater than one year for the prior offense; finding it was immaterial that, after the defendant was convicted of the prior offense, the Kansas Supreme Court held that the Kansas scheme for permitting upward departures was unconstitutional

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under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)).

Harp maintains that because the specific facts of his case did not provide any basis for imposition of a sentence exceeding one year, his prior conviction was not for an offense punishable by a term of imprisonment of more than one year. He explains that although the maximum aggravated punishment for possession with the intent to distribute marijuana, a Class I felony, is 15 months, the maximum non-aggravated punishment is only 12 months. See N.C. Gen.Stat. § 15A-1340.17(c), (d) (LexisNexis 2003). But this court has already rejected such an individualized analysis in United States v. Jones, 195 F.3d 205 (4th Cir.1999), in construing statutory language essentially identical to the language of § 4B1.2(b). In Jones, we held, in the context of a felon-in-possession-of-firearm conviction, see 18 U.S.C.A. § 922(g)(1) (West 2000), that a prior North Carolina conviction was for "a crime punishable by imprisonment for a term exceeding one year," id., if any defendant charged with that crime could receive a sentence of more than one...

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