United States v. Ernest Valentine

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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No. 17-2253

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UNITED STATES OF AMERICA

v.

ERNEST VALENTINE, a/k/a BOP

Earnest Valentine,

Appellant

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On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-16-cr-00264-001)

District Judge: Honorable Jose L. Linares

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Submitted Under Third Circuit L.A.R. 34.1(a)

March 23, 2018

Before: HARDIMAN, BIBAS, and ROTH, Circuit Judges.

(Opinion Filed: June 7, 2018)

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OPINION*

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*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

HARDIMAN, Circuit Judge.

Ernest Valentine appeals the District Court’s judgment of sentence, claiming legal error in the calculation of his criminal history. According to Valentine, § 4A1.2(c)(2) of the United States Sentencing Guidelines precluded the District Court from assigning him a criminal history point for his convictions under a New Jersey statute forbidding “loitering for the purpose of illegally using, possessing or selling a controlled substance.” N.J. Stat. Ann. § 2C:33-2.1(b). As Valentine acknowledges, we rejected this argument in United States v. Hines, 628 F.3d 101, 109–14 (3d Cir. 2010). Because we—like the District Court—are bound by Hines unless and until it is overturned by the Supreme Court or by this Court sitting en banc, see 3d Cir. I.O.P. 9.1, we will affirm.