United States v. Hamilton

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4887
PERRY HAMILTON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-00-190-S)

Submitted: July 31, 2001

Decided: August 27, 2001

Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant. Ste-
phen M. Schenning, United States Attorney, A. David Copperthite,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HAMILTON
OPINION

PER CURIAM:

Perry Hamilton was convicted by a jury of being a felon in posses-
sion of a firearm, 18 U.S.C.A. § 922(g)(1) (West 2000), and sen-
tenced to a term of fifty-one months imprisonment. He appeals his
sentence, alleging that the district court erred in counting his juvenile
adjudications in his criminal history score under U.S. Sentencing
Guidelines Manual § 4A1.2(d)(2) (2000). We affirm.

Hamilton did not contest his criminal history calculation in the dis-
trict court. On appeal, he argues for the first time that the Sentencing
Commission exceeded its mandate and acted irrationally when it cre-
ated USSG § 4A1.2(d)(2), which he contends violates the Equal Pro-
tection Clause. Because Hamilton failed to raise the issue he presents
here in the district court, we review only for plain error. United States
v. Olano, 507 U.S. 725, 731-32 (1993) (to afford relief for unpre-
served error, reviewing court must find an error, which is plain, which
affects substantial rights, and which seriously affects the fairness,
integrity, or public reputation of judicial proceedings).

Guideline section 4A1.2(d)(2) provides that, for offenses commit-
ted before age eighteen, one criminal history point is added "under
§ 4A1.1(c) for each adult or juvenile sentence imposed within five
years of the defendant’s commencement of the instant offense not
covered in (A)."* Hamilton argues that § 4A1.2(d)(2) is unconstitu-
tional because it automatically treats juvenile adjudications like adult
sentences for criminal history purposes, although the juvenile justice
system is based on principles and goals that are different from the
adult justice system. He further contends that § 4A1.2(d)(2) violates
equal protection in that juvenile adjudications are treated differently
from military, foreign, or tribal sentences and civil adjudications. He
also notes that incarcerations for treatment, such as insanity or mental
disability, are not automatically counted for criminal history purposes.

*Subsection (A) provides that two criminal history points are added
under § 4A1.1(b) for similar sentences of at least 60 days if the defendant
was released from confinement within five years of his commencement
of the instant offense.
 UNITED STATES v. HAMILTON 3
Hamilton has not demonstrated that the district court plainly erred
in accepting the criminal history calculation recommended in the pre-
sentence report. The sentencing guidelines as a whole have been held
to be constitutional, Mistretta v. United States, 488 U.S. 361, 412
(1989), and no court has held § 4A1.2(d)(2) to be invalid. That being
so, any alleged error was not plain when Hamilton was sentenced.

We therefore affirm the sentence. 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