UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4690
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JULIE RENEE STEWART,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00219-TDS-2)
Submitted: May 28, 2010 Decided: June 18, 2010
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John D. Bryson, WYATT EARLY HARRIS & WHEELER, LLP, High Point,
North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Randall S. Galyon, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Julie Renee Stewart pled guilty to conspiracy to
possess pseudoephedrine for the purpose of manufacturing
methamphetamine, 21 U.S.C.A. §§ 841(c)(2), 846 (West 1999 &
Supp. 2010), and was sentenced to a term of fifty months
imprisonment. 1 Stewart contends on appeal that the district
court incorrectly calculated her criminal history by adding her
probation revocation sentence to her original suspended sentence
of imprisonment, USSG §§ 4A1.1(b), 4A1.2(a)(1), (k). We affirm.
In the presentence report, Stewart received two
criminal history points under USSG § 4A1.1(b) for the sentences
she received for two misdemeanors on March 15, 2001. For the
first misdemeanor conviction, Stewart received 20 days
imprisonment, and for the second conviction she received a
suspended 45-day sentence and two years of supervised probation.
Stewart’s probation was revoked in 2003 and the 45-day sentence
was activated. The probation officer counted the combined
sentence of 65 days imprisonment as a single sentence. Stewart
objected that the 20-day sentence and the 45-day sentence should
be counted separately and that each should be assigned one
1
Stewart’s advisory guideline range was 84-105 months. The
district court departed downward for substantial assistance, on
the government’s motion, pursuant to U.S. Sentencing Guidelines
Manual § 5K1.1, p.s. (2008).
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criminal history point under § 4A1.1(c). Because only four
criminal history points may be awarded under § 4A1.1(c), and
Stewart had more than four other sentences which each rated one
point under subsection (c), the change would have had the effect
of reducing her actual criminal history score by two points and
lowering her criminal history category from IV to III.
The probation officer responded that § 4A1.2(a)(2)(B)
currently provides that prior sentences imposed on the same day,
or for offenses charged in the same document, are counted as a
single sentence if there was no intervening arrest. The
probation officer also relied on § 4A1.2(k)(1), which directs:
“In the case of a prior revocation of probation . . . add the
original term of imprisonment to any term of imprisonment
imposed upon revocation [and] . . . [use] the resulting total
. . . to compute the criminal history points for § 4A1.1(a),
(b), or (c), as applicable.”
At the sentencing hearing, Stewart argued that the two
misdemeanors were separately charged and that her 20-day
sentence and 45-day sentence were imposed on different dates.
In support of the latter argument, Stewart relied on language in
United States v. Romary, 246 F.3d 339 (4th Cir. 2001), a case in
which the issue was whether a defendant qualified for sentencing
as a career offender when one of his predicate sentences--a
suspended 10-year sentence--came within the 15-year applicable
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time period by virtue of the fact that his probation was
subsequently revoked and the sentence activated. In considering
the issue, this court in Romary at one point referred to the
suspended sentence as “the original sentence” and the probation
revocation sentence as “the second sentence.”
The district court rejected Stewart’s objection,
finding that the prior sentences were imposed on the same day
and that the revocation sentence was properly treated as part of
the original sentence under USSG § 4A1.2(k)(1) and Application
Note 11. The court observed that Romary was consistent with the
current guidelines when it stated that post-conviction penalties
were attributable to the original conviction on constitutional
grounds.
On appeal, Stewart renews her argument that the two
prior sentences should have been counted separately because the
offenses were not charged in the same charging instrument, and
her 20-day sentence was not imposed on the same day as her 45-
day revocation sentence. 2 A sentence is reviewed for
reasonableness under an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007).
2
Stewart does not argue that an intervening arrest
separated the two offenses.
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As the district court found, § 4A1.2(k)(1) requires
the court to treat a revocation sentence as part of the original
sentence. Stewart first argues that § 4A1.2(k)(1) does not
require the 45-day revocation sentence she received in 01-CR-
50845 be added to the 20-day active sentence she had previously
received in 01-CR-50844 because there was no probation
revocation in 01-CR-50844. However, the language of
§ 4A1.2(k)(1) and its commentary is unambiguous, and does not
require, when two prior sentences were imposed on the same date,
that both entail a later probation violation. Second, Stewart
again argues that Romary supports her position. It does not.
The focus in Romary was whether the date of the revocation
sentence brought the original sentence within the applicable
time period to make it countable for career offender purposes,
not whether the revocation sentence was part of the original
sentence under § 4A1.2(k)(1). We conclude that the district
court correctly applied the relevant guidelines, that no
procedural error was committed by the district court, and that
the sentence was otherwise reasonable.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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