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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5107
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARKEENUS CLEAVON WILKERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00032-MR-13)
Submitted:
August 16, 2012
Decided:
August 21, 2012
Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Amy Lee Copeland, AMY LEE COPELAND, LLC, Savannah, Georgia, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Markeenus Cleavon Wilkerson pled guilty, pursuant to a
plea
agreement,
distribute
to
fifty
kilograms
or
conspiracy
grams
more
of
or
to
more
cocaine,
in
violation
of
Wilkerson timely appeals.
has
intent
base
imprisonment.
counsel
was
with
cocaine
846
appeal,
He
of
841(a)(1),
On
(2006).
possess
sentenced
filed
21
to
brief
and
to
168
five
U.S.C.
months
pursuant
to
Anders v. California, 386 U.S. 738 (1967), conceding that there
are no meritorious issues for appeal but raising the following
questions: (1) whether Wilkersons guilty plea was conducted in
compliance with Fed. R. Crim. P. 11; (2) whether Wilkersons two
prior felony convictions were proper predicates for the career
offender
Guideline;
(3)
whether
application
of
the
Fair
Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2327
(FSA or the Act), would have resulted in a lower sentence;
and
(4)
whether
Wilkersons
sentence
is
substantively
reasonable.
Wilkerson has filed a pro se supplemental brief
arguing
that
the
11(b)(3)
in
sentence
is
magistrate
accepting
judge
Wilkersons
substantively
did
not
guilty
unreasonable
comply
plea,
and
because
the
with
that
Rule
his
district
court did not adequately consider sentencing disparity between
codefendants under 18 U.S.C. 3553(a)(6) (2006).
We affirm.
First,
counsel
and
validity of the guilty plea.
Wilkerson
both
challenge
the
Our review of the plea hearing
reveals that the magistrate judge substantially complied with
the dictates of Rule 11 in accepting Wilkersons plea, and we
perceive
no
reason
to
question
its
validity.
See
United
States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).
Although
the
magistrate
judge
deferred
until
sentencing
the
determination that a factual basis existed for the plea, Rule
11(b)(3),
the
parties
stipulated
to
this
delay
in
the
plea
agreement and this court has approved such a procedure.
United
States
2008).
v.
Ketchum,
550
F.3d
363,
366-67
(4th
Cir.
Therefore, we affirm Wilkersons conviction.
Next, we examine whether two prior convictions were
properly
offender
considered
status.
as
We
predicates
review
de
for
novo
Wilkersons
question
career
concerning
whether a prior state conviction qualifies as a prior felony
conviction
under
the
career
offender
provision.
States v. Jones, 667 F.3d 477, 482 (4th Cir. 2012).
Sentencing
Guidelines
Manual
(USSG)
4B1.1
United
Under U.S.
(2010),
defendant is a career offender if he was at least eighteen at
the time of the present offense, that offense is either a felony
crime of violence or a felony drug offense, and the defendant
has at least two prior felony convictions for crimes of violence
or controlled substances.
Wilkerson was in his thirties at the
3
time of this felony drug offense, and he had one prior North
Carolina conviction for felony possession with intent to sell
cocaine and one for felony discharging a firearm into a vehicle.
Although Wilkerson was sentenced for both convictions
on
the
same
convictions
arrest.
a
proper
day,
the
because
district
they
were
court
separated
USSG 4A1.2(a)(2); 4B1.2(c).
predicate
because
it
correctly
was
an
by
counted
an
both
intervening
The drug conviction is
offense
punishable
by
imprisonment over one year and violated a state law prohibiting
possession of a controlled substance with intent to distribute.
USSG 4B1.2(b).
Although Wilkerson was seventeen at the time
of the offense, he was convicted as an adult.
USSG 4B1.2 cmt.
n.1.
Wilkersons other predicate offense, felony discharge
of a firearm into an occupied vehicle, was properly counted as a
crime
of
violence
because
it
has
as
an
element
the
use,
attempted use, or threatened use of physical force against the
person of another.
USSG 4B1.2 cmt. n.1; see United States v.
Curtis, 645 F.3d 937, 940-43 (7th Cir. 2011) (finding similar
Illinois
statute
4B1.2(a)(1)).
offense.
to
be
crime
of
violence
under
USSG
Wilkerson was sentenced to ten years for that
Accordingly, he was properly sentenced as a career
offender.
Next, counsel questions whether application of the FSA
would
affect
Wilkersons
sentence.
Wilkersons
conspiracy
offense occurred before the effective date of the Act, but he
was sentenced after that date.
The Supreme Court has recently
held that the FSAs new, lower mandatory minimums apply in the
post-Act
United
sentencing
States,
132
of
S.
pre-Act
Ct.
criminal
2321,
conduct.
2335-36
Dorsey
(2012).
v.
Therefore,
Wilkerson, on direct appeal, can reap any benefit conveyed by
the
FSA.
As
counsel
concedes,
however,
because
Wilkersons
sentence was driven by his career offender status rather than by
21 U.S.C. 841(b), the statutory change did not affect his
sentence.
Before the FSA, Wilkerson, charged with fifty grams or
more of cocaine base and with a 21 U.S.C. 851 information of a
prior conviction for a felony drug offense, faced twenty years
to life under 21 U.S.C. 841(b)(1)(A) (2006).
After the Acts
effective date, he faces ten years to life under 21 U.S.C.A.
841(b)(1)(B) (West 1999 & Supp. 2012).
As
career
offender,
however,
Wilkersons
base
offense level was dictated by the statutory maximum applicable
to the offense.
USSG 4B1.1(b).
Both before and after the
effective date of the FSA, because of his prior felony drug
conviction,
Wilkerson
faced
maximum
sentence
of
life,
21
U.S.C. 841(b)(1)(A) (2006); 21 U.S.C.A. 841(b)(1)(B) (West
5
1999
&
Supp.
2012),
4B1.1(b)(1).
for
Thus,
an
the
offense
new
level
statute
of
has
37.
no
USSG
impact
on
Wilkersons Guidelines range and the sentence imposed.
Finally,
both
counsel
and
Wilkerson
challenge
substantive reasonableness of Wilkersons sentence.
sentence
for
standard.
first
reasonableness,
under
an
abuse
We review a
of
discretion
Gall v. United States, 552 U.S. 38, 51 (2007).
review
for
significant
procedural
the
errors,
We
including
whether the district court improperly calculated the Guidelines
range,
failed
to
consider
the
3553(a)
factors,
based
its
sentence on clearly erroneous facts, or failed to adequately
explain
the
procedurally
sentence.
Id.
reasonable
reasonableness.
Only
may
we
if
we
consider
find
sentence
its
substantive
United States v. Carter, 564 F.3d 325, 328 (4th
Cir. 2009).
As
we
discussed
above,
the
district
court
properly
determined Wilkerson to be a career offender, and that status
dictated both his base offense level of 37 and his criminal
history category (CHC) of VI.
USSG 4B1.1(b).
With a three-
level deduction for acceptance of responsibility, he faced a
sentencing
district
range
court
of
262
granted
to
the
327
months
Governments
imprisonment.
motion
for
departure, for a new range of 188 to 235 months.
ultimately
sentenced
Wilkerson
below
6
this
new
The
downward
The court
range,
to
168
months.
In
announcing
explained
its
reasoning
sentence,
and
the
addressed
district
the
counsel and by Wilkerson in his allocution.
court
issues
fully
raised
by
The courts careful
attention to sentencing produced no procedural errors, and we
therefore find the sentence procedurally reasonable.
We assess the substantive reasonableness of a sentence
under the totality of the circumstances to determine whether the
district court abused its discretion in imposing a 168-month
sentence.
United States v. Susi, 674 F.3d 278, 289 (4th Cir.
2012).
Wilkersons
sentence
is
below
the
recalculated
Guidelines range, and as such is presumptively reasonable.
Neither
counsel
rebutted this presumption.
nor
Wilkerson
has
Id.
successfully
Counsel concedes as much, noting
that Wilkerson received two downward departures, and that he was
sentenced within the range requested by counsel.
brief,
Wilkerson
adequately
asserts
weigh
3553(a)(6),
the
the
that
the
sentencing
need
to
district
factor
avoid
set
In his pro se
court
out
in
unwarranted
did
18
not
U.S.C.
sentencing
disparities among defendants with similar records who have been
found
guilty
of
similar
conduct.
The
district
court
specifically addressed this point at sentencing, however, noting
that
any
codefendant
disparity
was
in
based
sentence
on
between
Wilkersons
much
Wilkerson
higher
without consideration of the career offender CHC.
7
and
CHC,
his
even
Thus, the
district
court
clearly
found
warranted
certain
degree
of
sentencing disparity between the codefendants, but mitigated the
disparity with its departures.
Thus, we readily conclude that Wilkersons sentence is
both procedurally and substantively reasonable.
In accordance
with Anders, we have reviewed the entire record in this case and
have
found
no
meritorious
issues
for
appeal.
We
therefore
affirm the judgment of the district court and deny counsels
motion to withdraw.
Wilkerson,
in
This court requires that counsel inform
writing,
of
the
right
to
petition
Court of the United States for further review.
the
Supreme
If Wilkerson
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may renew her
motion for leave to withdraw from representation.
Counsels
motion must state that a copy thereof was served on Wilkerson.
We
dispense
with
oral
argument
because
the
facts
and
legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
