United States v. Randy Lee Carney

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 30, 2019
• Docket: 18-4081
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4081

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

RANDY LEE CARNEY,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:16-cr-00223-D-1)

Argued: December 13, 2018 Decided: January 30, 2019

Before GREGORY, Chief Judge, and DUNCAN and DIAZ, Circuit Judges.

Affirmed by unpublished opinion. Judge Duncan wrote the opinion, in which Chief Judge Gregory and Judge Diaz concurred.

ARGUED: Mark Russell Sigmon, SIGMON LAW, PLLC, Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. DUNCAN, Circuit Judge:

Randy Lee Carney appeals the district court’s judgment sentencing him to 120

months’ imprisonment. He contends that the court erred in applying the career offender

enhancement to his sentence because one of the offenses on which it relied did not

qualify as a predicate offense. Finding no reversible error, we affirm.

I.

Carney was indicted by a grand jury on two counts of distribution and possession

with the intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). He

pleaded guilty to both counts.

Before sentencing, the probation office prepared a presentence report (a “PSR”),

which determined that Carney was a career offender under U.S.S.G. § 4B1.1(a). 1 This

designation was based on two prior felony convictions: a 2012 conviction for possession

with intent to sell and deliver marijuana and a 2013 conviction for assault on a law

enforcement officer causing physical injury (“ALEOCPI”), N.C. Gen. Stat. § 14-34.7(c).

The latter conviction involved Carney’s assault of a Raleigh police officer, which left the

officer with “a broken nose, a cracked tooth and whiplash.” J.A. 74, 100. The career

offender enhancement increased Carney’s total offense level from a base offense level of

1 Under the Guidelines, a defendant is a career offender if, as relevant here, the defendant “has at least two prior felony convictions of either a crime of violence [as defined in § 4B1.2(a)] or a controlled substance offense.” U.S.S.G. §§ 4B1.1(a), 4B1.2(a).

2 24 to 32, and after a three-level reduction for acceptance of responsibility, to 29. The

enhancement also increased his criminal history category from IV to VI. Accordingly,

Carney’s advisory Guidelines range rose from 57 to 71 months without the career

offender designation to 151 to 188 months with the enhancement.

Carney objected to the probation officer’s determination that he was a career

offender, contending that his 2013 ALEOCPI conviction did not constitute a crime of

violence and was therefore not a predicate offense for the career offender enhancement.

Carney’s sentencing hearing was continued several times pending our decision in United

States v. Thompson, 874 F.3d 412 (4th Cir. 2017), which determined whether North

Carolina assault inflicting serious bodily injury constitutes a crime of violence, because

as the district court in this case explained, it “really do[es] try to get it right.” 2 J.A. 54.

The district court ultimately overruled Carney’s objection, concluding that Carney’s 2013

ALEOCPI conviction qualified as a crime of violence under § 4B1.2(a) and that he was

therefore a career offender.

Having determined that Carney was a career offender, the court considered the 18

U.S.C. § 3553(a) factors and sentenced Carney below the Guidelines range to 120 months

in custody for each count, to run concurrently. In addition, the district court further

announced that it would have imposed the same 120-month sentence even if the career

offender enhancement did not apply. The court explained that in a “counterfactual

2 During this period, the court gave Carney notice pursuant to Federal Rules of Criminal Procedure 32(h) that it was considering an upward departure under U.S.S.G. § 4A1.3(a)(1).

3 universe” where Carney was not a career offender, it would have reached the same

sentence either by an upward departure pursuant to U.S.S.G. § 4A1.3, on the basis that

Carney’s criminal history category underrepresented the seriousness of his criminal

history and his likelihood of recidivism, or by a variance. J.A. 80–81. This appeal

followed.

II.

On appeal, Carney challenges the procedural and substantive reasonableness of his

sentence, contending that the district court erred in sentencing him as a career offender

because his 2013 ALEOCPI conviction does not constitute a crime of violence under

§ 4B1.2(a). Specifically, Carney contends that, under the categorical approach, North

Carolina ALEOCPI lacks a sufficient mens rea element to categorically qualify as a

crime of violence.

Generally, we apply a “deferential abuse-of-discretion standard” in reviewing any

sentence, “whether inside, just outside, or significantly outside the Guidelines range.”

United States v. Savillon-Matute, 636 F.3d 119, 122 (4th Cir. 2011) (quoting Gall v.

United States, 552 U.S. 38, 41 (2007)). We review a sentence for reasonableness, which

has procedural and substantive components: procedural reasonableness evaluates the

method used to determine a defendant’s sentence, while substantive reasonableness

examines the totality of the circumstances to determine whether the sentence satisfies the

standards set forth in 18 U.S.C. § 3553(a). United States v. Hargrove, 701 F.3d 156,

4 160–61 (4th Cir. 2012) (quoting United States v. Mendoza-Mendoza, 597 F.3d 212, 216

(4th Cir. 2010)).

Improper calculation of a Guidelines range--such as applying a career offender

enhancement where the defendant is not in fact a career offender--constitutes a

procedural error that is subject to harmless error review. United States v. Gomez-

Jimenez, 750 F.3d 370, 382 (4th Cir. 2014); see Fed. R. Crim. P. 52 (stating that federal

courts must disregard harmless errors). Accordingly, rather than evaluating the merits of

Carney’s challenge to the calculation of the Guidelines range, we may proceed directly to

an “assumed error harmlessness inquiry.” United States v. McDonald, 850 F.3d 640, 643

(4th Cir. 2017); see Gomez-Jimenez, 750 F.3d at 382; Hargrove, 701 F.3d at 162;

Savillon-Matute, 636 F.3d at 123.

Under this inquiry, we affirm the district court’s sentence if we determine that “(1)

the district court would have reached the same result even if it had decided the guidelines

issue the other way, and (2) the sentence would be reasonable even if the guidelines issue

had been decided in the defendant’s favor.” Gomez-Jimenez, 750 F.3d at 382. The error

will only be deemed harmless when we are “certain that the result at sentencing would

have been the same” absent the enhancement. United States v. Montes-Flores, 736 F.3d

357, 370 (4th Cir. 2013) (internal quotation marks omitted) (emphasis added). We have

explained that we undertake this assumed error harmlessness inquiry because “it would

make no sense to set aside a reasonable sentence and send the case back to the district

court since it has already told us that it would impose exactly the same sentence, a

sentence we would be compelled to affirm.” Hargrove, 701 F.3d at 162 (alterations and

5 citation omitted). Therefore, we assume that Carney does not qualify as a career offender

under the Guidelines and evaluate whether, without the career offender enhancement, the

district court would have reached the same result and whether the result was reasonable.

Under the first prong, the record makes clear that the district court would have

imposed the same sentence even if the career offender enhancement did not apply.

Expressing the “need to incapacitate [Carney],” the district court provided two alternative

bases for sentencing Carney to 120 months imprisonment. J.A. 78. First, the court

announced that “in an alternative counterfactual universe had [the] career offender

[enhancement] not applied,” it would have “upwardly departed” to an offense level of 24

and a criminal history category of VI, yielding a Guidelines range of 100 to 125 months.

J.A. 80–81. Within this range, the court explained that it would have imposed a 120-

month sentence. Second, the court announced alternatively that it also would have

reached the 120-month sentence as a variance. J.A. 81. Here, where the district court

explicitly pronounced that it would have imposed the same sentence even without the

career offender enhancement and explained the basis for the alternative sentence, the first

prong is satisfied.

Carney nonetheless argues that the court’s error was not harmless because we

cannot be certain that the court would have imposed the same sentence. Carney points to

the fact that the district court delayed sentencing pending our decision in Thompson, 874

F.3d 412, arguing that the court would not have delayed sentencing if it truly believed

that Carney’s case warranted a 120-month sentence regardless of the correct Guidelines

range. Carney also contends that the court’s announcement of an alternative sentence is

6 merely standard practice. These arguments, however, are unavailing. We have

concluded that the first prong was satisfied in cases where the district court’s

pronouncement of an alternative sentence was far less clear. In Savillon-Matute, for

example, we concluded that the district court satisfied the first prong even though it did

not specifically state that it would have imposed the same sentence absent the

enhancement because the court’s sentencing intent was clear from the record. 636 F.3d at

124. In Gomez-Jimenez, we affirmed the district court’s alternative sentence under

assumed error harmlessness review even though it did not provide a separate explanation

for the alternative sentence. 750 F.3d at 383. In contrast, here, the court provided a

detailed explanation of the basis for and specifics of the parallel result. We therefore

conclude that the first prong is satisfied.

Turning to the second prong, we must determine whether Carney’s 120-month

sentence would be substantively reasonable even if the disputed issue--whether he was a

career offender--were resolved in his favor. When reviewing a sentence’s substantive

reasonableness, we “examine[] the totality of the circumstances to see whether the

sentencing court abused its discretion in concluding that the sentence it chose satisfied

the standards set forth in § 3553(a).” Id. (quoting Mendoza-Mendoza, 597 F.3d at 216).

In reviewing the § 3553(a) factors, “a sentencing court need not explicitly discuss each

factor on the record or robotically tick through § 3553(a)’s every subsection.” United

States v. Rivera-Santana, 668 F.3d 95, 105 (4th Cir. 2012) (internal quotation marks

omitted). Rather, we will “credit an articulation as clear and appropriate[] when the

7 reasons can be matched to a factor appropriate for consideration and tailored to the

defendant’s situation.” Id. (internal quotation marks omitted).

The record reflects that the district court conducted a thorough, individualized

assessment of Carney and his criminal conduct as necessary under the § 3553(a) factors

in explaining its sentence. 3 The district court considered the nature of Carney’s present

offense, as well as his history and characteristics. It noted his age and substance abuse

problems, as well as his lack of a GED, a high school diploma, or a history of

employment. The court also considered Carney’s criminal history, which began at age

eighteen, and emphasized in particular that the crimes of conviction “are not once, but

twice.” J.A. 78. The court expressed particular concern over Carney’s 2013 ALEOCPI

conviction, calling it a “very serious offense.” Id. at 77–78. Considering the “totality of

the record,” the court explained that there was a “need to incapacitate [Carney],” to

“generally deter, [and] to impose just punishment.” Id. at 78. Accordingly, given the

district court’s explanation of the § 3553(a) factors and the deferential standard of review

we apply when reviewing criminal sentences, we conclude that the sentence would be

reasonable even if the disputed issue were resolved in Carney’s favor. 4

3 Because the district court’s alternative sentence on the basis of a variance would have been substantively reasonable, we need not determine the reasonableness of an alternative sentence based on an upward departure. 4 Carney argues that even if the court’s sentence is reasonable, its error is not harmless because the career offender designation formally elevated his criminal history category from IV to VI, which has adverse consequences for his treatment in prison. According to Carney, had the court reached the same sentence through an upward departure, such a departure would not have formally elevated his criminal history (Continued) 8 Because the district court made it clear that it would have imposed the same

sentence even if Carney was not a career offender, and that sentence is substantively

reasonable, we conclude that any alleged Guidelines calculation was harmless.

III.

We affirm the district court’s judgment sentencing Carney to 120 months’

imprisonment.

AFFIRMED

category. However, to support this claim, Carney relies solely upon a conversation he had with the Probation Office and Bureau of Prisons. We find that his argument is therefore speculative, and in the absence of any authority in support of this position, we see no basis on which to conclude that any error was not harmless in this case.