UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5045
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEROY DEANGELO DARITY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00013-MR-4)
Submitted: September 27, 2010 Decided: November 3, 2010
Before GREGORY, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leroy Deangelo Darity appeals his conviction and 188
month sentence for one count of conspiracy to possess with
intent to distribute cocaine base in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006). Darity, who was sentenced as a career
offender, argues that the district court erred in concluding
that he could not collaterally attack three predicate 1993 North
Carolina drug convictions, and accordingly, his sentence was
unreasonable. We affirm.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court properly calculated
the defendant’s advisory guideline range, this court must decide
whether the district court considered the 18 U.S.C. § 3553(a)
(2006) factors, analyzed the arguments presented by the parties,
and sufficiently explained the selected sentence. Lynn, 592
F.3d at 575-76; see United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (holding that, while the “individualized
assessment need not be elaborate or lengthy, . . . it must
provide a rationale tailored to the particular case . . . and
[be] adequate to permit meaningful appellate review”). Properly
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preserved claims of procedural error are subject to harmless
error review. Lynn, 592 F.3d at 576.
Darity’s claim is based in part on Lynn v. West, 134
F.3d 582 (4th Cir. 1998). In that case, we held that North
Carolina’s controlled substance tax (“Drug Tax”) (as it existed
prior to 1995) was a criminal penalty, rather than a civil one,
and concluded that certain constitutional protections, including
the Double Jeopardy Clause, must attach to the imposition of the
tax. 134 F.3d at 588. Darity claims that because he paid the
tax in 1993, and was convicted of offenses arising out of the
same conduct, his convictions may not be considered in
determining whether he is a career offender.
The merits of his claim aside, Darity may not now seek
to collaterally attack his prior convictions to prevent the
imposition of a career offender enhancement. According to the
Guidelines:
Sentences resulting from convictions that (A) have
been reversed or vacated because of errors of law or
because of subsequently-discovered evidence
exonerating the defendant, or (B) have been ruled
constitutionally invalid in a prior case are not to be
counted. With respect to the current sentencing
proceeding, this guideline and commentary do not
confer upon the defendant any right to attack
collaterally a prior conviction or sentence beyond any
such rights otherwise recognized in law (e.g., 21
U.S.C. § 851 expressly provides that a defendant may
collaterally attack certain prior convictions).
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U.S. Sentencing Guidelines Manual § 4A1.2 n.6 (2009). The plain
language of the Guidelines forecloses Darity’s attack on his
1993 convictions. Furthermore, the Supreme Court has held that,
at least in the context of a challenge to an enhancement
pursuant to the Armed Career Criminal Act, there is no
constitutional right to collaterally attack a prior conviction,
with the exception of those convictions that were obtained in
violation of the right to counsel. See Custis v. United States,
511 U.S. 485, 494-95 (1994); see also United States v. Bacon, 94
F.3d 158, 163 (4th Cir. 1996) (extending Custis to challenges to
Guidelines calculations). Taken together, Custis and USSG
§ 4A1.2 stand for the proposition that “absent an allegation
that the defendant was denied counsel in the prior proceeding, a
district court sentencing a defendant may not entertain a
collateral attack on a prior conviction used to enhance the
sentence unless the attack is recognized by law.” United
States v. Longstreet, 603 F.3d 273, 277 n.3 (5th Cir. 2010); see
Bacon, 94 F.3d at 161-64.
Accordingly, we conclude that the district court did
not err in calculating Darity’s Guidelines range, and the
sentence was not procedurally unreasonable. We therefore affirm
the district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented
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in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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