UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4050
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH LOUIS YOUNG, III,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (6:07-cr-00113-GRA-1)
Submitted: August 26, 2008 Decided: October 14, 2008
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Elizabeth Jean Howard, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Young, III, appeals from his conviction and
262-month sentence following a guilty plea to one count of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g) (2000), one count of possession with intent to distribute
marijuana and crack cocaine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B) (2000), and one count of possession of a firearm during
a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(2000). Young’s counsel filed a brief pursuant to Anders v.
California, 286 U.S. 738, 744 (1967), stating that there were no
meritorious issues for appeal, but questioning whether the district
court complied with Fed. R. Crim. P. 11 in accepting Young’s guilty
plea, and whether Young’s sentence is reasonable. In a pro se
pleading, Young contends that his conviction violates the Double
Jeopardy Clause, that he did not actually enter a guilty plea as to
the drug charge, that counsel promised him a lower sentence, and
that the court erred in sentencing him as a career offender.1 For
the following reasons, we affirm Young’s convictions, but vacate
and remand for resentencing.
During Young’s plea hearing, the district court properly
informed him of the rights he was forfeiting as a result of his
1
We granted Young’s May 2008 motion for extension of time to
file a pro se supplemental brief, but he did not file a brief
within the allotted time. He filed a second motion for extension
of time in July 2008, which we denied. However, we have considered
the substantive claims raised in the July 2008 motion.
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plea and the nature of the charges and penalties he faced, found
that Young was competent and entering his plea voluntarily, and
determined there was a sufficient factual basis for the plea.
Therefore, the record establishes Young knowingly and voluntarily
entered into his guilty plea with a full understanding of the
consequences and there was no error in the district court’s
acceptance of his plea.
Young also questions the reasonableness of his sentence.
Following United States v. Booker, 543 U.S. 220 (2005), a district
court must engage in a multi-step process at sentencing. First, it
must calculate the appropriate advisory Guidelines range. It must
then consider the resulting range in conjunction with the factors
set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) and
determine an appropriate sentence. United States v. Davenport, 445
F.3d 366, 370 (4th Cir. 2006). The appellate court reviews the
sentence for abuse of discretion. Gall v. United States, 128 S.
Ct. 586, 597 (2007). The court must first ensure that the district
court committed no procedural error, such as “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence--including an explanation
for any deviation from the Guidelines range.” Id.
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Our review of the record reveals that the district court
committed procedural error with respect to Young’s sentence by
apparently treating the Guidelines as mandatory. Although Young’s
262-month sentence is below the statutory maximum sentence
applicable to his offense and within the applicable guidelines
range, the district court appeared to believe it was confined to
that range. Specifically, during the sentencing hearing, although
the court acknowledged the guidelines were advisory, it also
stated:
You’ve got three offenses, prior offenses. And the
Congress of the United States says if you have three
prior offenses, you are a career offender and, therefore,
your sentence is - the least amount you can get is 262
months.
. . .
You were caught three times. You’ve been convicted three
times. And being convicted three times, that’s all there
is to it. Congress says you shall serve a minimum of 262
months to a high of 327 months.
. . .
I’m giving you the least, or intend to give you the least
I can under the law. You are a criminal history category
of 6, which is a career offender.
Moreover, although the district court stated generally that it
considered the § 3553(a) factors, it failed to elaborate on their
significance in determining Young’s sentence. Accordingly, because
the record does not clearly confirm the district court’s
understanding that it possessed authority to sentence Young below
the properly calculated Guidelines range, we conclude that the
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district court abused its discretion in imposing the sentence.2 We
accordingly vacate and remand for resentencing.3
Turning to the issues Young raises pro se, Young first
contends that his current conviction violates the Double Jeopardy
Clause because he has already served state time on the drug offense
(Count Two). However, the dual sovereignty doctrine permits
prosecution by state and federal sovereigns on the same charges.
Abbate v. United States, 359 U.S. 187 (1959). He also claims that
he did not actually enter a guilty plea as to the drug charge, but
that claim is belied by the record. Young also asserts that
counsel promised him a lower sentence than he received, but he
stated under oath that no one promised him a particular sentence.
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Finally, we find
no merit to Young’s claim that a juvenile offense was wrongly
included in determining that he is a career offender; the juvenile
offense in question was properly included in his criminal history
pursuant to U.S. Sentencing Guidelines Manual § 4A1.2(d)(2)(A)
(2006).
2
We note that the district court did not have the benefit of
Gall when it imposed sentence. In Gall, the Supreme Court rejected
a “rule that requires ‘extraordinary’ circumstances to justify a
sentence outside the Guidelines range,” and held that a district
court may not accord a presumption of reasonableness to the
advisory Guidelines range. Gall, 128 S. Ct. at 595-97.
3
By this disposition, we indicate no view as to the sentence
to be imposed upon Young on remand, leaving that determination in
the first instance to the district court.
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Pursuant to Anders, we have examined the entire record
and find no other meritorious issues for appeal. We therefore
affirm Young’s conviction, but vacate his sentence and remand for
resentencing. We grant Young’s motions to accept his affidavit and
exhibit but deny his motion to reconsider the court’s July 24
order. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the United
States for further review. If Young requests that such a petition
be filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on Young. 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 IN PART,
VACATED IN PART, AND REMANDED
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