UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4613
UNITED STATES OF AMERICA,
Plaintiff – Appellant,
v.
LORENZO KENYON MASON,
Defendant – Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00103-LHT-1)
Submitted: August 11, 2010 Decided: August 23, 2010
Before WILKINSON, KING, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Edward R. Ryan, United States Attorney, Charlotte, North
Carolina, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellant. Randolph M. Lee,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lorenzo Kenyon Mason pled guilty pursuant to a plea
agreement to one count of unlawful use of a firearm during and
in relation to a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1) (2006), and was sentenced to sixty months
in prison. Mason objected to his presentence investigation
report (“PSR”) insofar as it relied upon an earlier North
Carolina conviction for conspiracy to discharge a weapon into
occupied property as a predicate “crime of violence” in
recommending that he be sentenced as a career offender under the
Sentencing Guidelines. The district court sustained Mason’s
objection and sentenced him without employing the career
offender enhancement. The Government has appealed, arguing that
the district court erred when it disregarded the North Carolina
conviction as a career offender predicate offense. Because we
agree, we vacate Mason’s sentence and remand for resentencing.
After United States v. Booker, 543 U.S. 220 (2005), we
review a sentence for reasonableness. Gall v. United States,
552 U.S. 38, 51 (2007). The first step in this review requires
the court to ensure that the district court committed no
significant procedural error. United States v. Evans, 526 F.3d
155, 161 (4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
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[18 U.S.C.] § 3553(a) [(2006)] 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.” Gall, 552 U.S. at 51.
If, and only if, this court finds the sentence
procedurally reasonable can we consider the substantive
reasonableness of the sentence imposed. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). We review the
district court's refusal to classify Mason as a career offender
de novo. United States v. Farrior, 535 F.3d 210, 223 (4th Cir.
2008).
In this case, the Government presented the district
court with a North Carolina judgment of conviction, which
indicated that Mason was convicted of conspiracy to discharge a
weapon into occupied property. Because the substantive offense
of discharging a weapon into occupied property is a Class E
felony, see N.C. Gen. Stat. § 14-34.1 (2009), Mason’s criminal
judgment appropriately referred to his conspiracy conviction as
a Class F felony, in accordance with N.C. Gen. Stat. § 14-2.4
(2009).
Mason does not deny that discharging a weapon into
occupied property is a crime of violence, but instead suggests
that conspiracy to discharge a weapon into occupied property is
not a crime of violence in this instance. In this regard, the
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Sentencing Commission has determined that “crimes of violence”
for purposes of a sentencing enhancement “include the offenses
of aiding and abetting, conspiring, and attempting to commit
such offenses.” U.S. Sentencing Guidelines Manual (“USSG”)
§ 4B1.2 cmt. n.1 (2008) (emphasis added). The Commission's
judgment, as the Supreme Court has explained, was premised on
its analysis of “empirical sentencing data and presumably
reflects an assessment that [aiding and abetting, conspiracy,
and attempt offenses] often pose a similar risk of injury as
completed offenses.” James v. United States, 550 U.S. 192, 206
(2007).
Moreover, we have rejected the notion that a North
Carolina conviction for conspiracy to commit a violent felony
under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(b)
(2006), required an overt act element before the conspiracy
conviction could serve as a predicate conviction under the
ACCA’s residual provision. * See United States v. White, 571 F.3d
365, 370-71 (4th Cir. 2009), cert. denied, 130 S. Ct. 1140
(2010). Rather, Mason’s previous conspiracy conviction
*
Because the language defining a violent felony in § 924(e)
is nearly identical to and materially indistinguishable from the
language defining a crime of violence in USSG § 4B1.2, we look
to case law interpreting both sections when examining whether a
prior crime falls within these sections. See United States v.
Johnson, 246 F.3d 330, 333 & n.5 (4th Cir. 2001).
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establishes that he and his co-conspirator specifically intended
their agreement to discharge a weapon into occupied property to
be carried out. See id. at 371 (citing to N.C.P.I.-Crim. 202.80
(2001)). Because a North Carolina conspiracy conviction
“presents an immediate, serious, and foreseeable physical risk
that arises concurrently with the formation of the conspiracy[,
w]hen conspirators have formed a partnership in crime to achieve
a violent objective, and when they intend to achieve that
object, they have substantially increased the risk that their
actions will result in serious physical harm to others[,]” id.
at 371, or, as in this instance, that their actions will result
in “serious potential risk of physical injury to another.” USSG
§ 4B1.2(a)(2).
It is of no event that Mason’s criminal judgment
referred to N.C. Gen. Stat. § 14-34.1—the substantive offense—as
the statute under which Mason was convicted. Because a
conspiracy offense in North Carolina “originated with, and is
defined by, the common law[,]” White, 571 F.3d at 367 (citations
omitted), the North Carolina conspiracy statute provides only
for the punishment to be imposed when an individual is convicted
of conspiring to commit a felony. See N.C. Gen. Stat. § 14-2.4
(“[A] person who is convicted of a conspiracy to commit a felony
is guilty of a felony that is one class lower than the felony he
or she conspired to commit[.]”). We discern no ambiguity in
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Mason’s judgment of conviction that would prevent the conviction
contained therein from serving as a career offender predicate
offense.
Based on the foregoing, we find that the district
court erred when it sustained Mason’s objection to his career
offender classification. Accordingly, without commenting on the
propriety of the calculations in the PSR or the factual findings
contained therein, we vacate and remand to the district court
for a new resentencing hearing to be conducted consistent with
this opinion. We also express no opinion on the substantive
appropriateness of the sentence to be imposed on remand. 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.
VACATED AND REMANDED
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