UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4980
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT ISAAC NELSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:09-cr-00295-DCN-2)
Submitted: May 5, 2011 Decided: June 2, 2011
Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James A. Brown, Jr., JAMES A. BROWN, JR., P.A., Beaufort, South
Carolina, for Appellant. Alston Calhoun Badger, Jr., Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Isaac Nelson pled guilty pursuant to a plea
agreement to one count of bank robbery and aiding and abetting
such conduct, in violation of 18 U.S.C. §§ 2113(a), (d), 2
(2006), and one count of knowingly using and carrying a firearm
during and in relation to a crime of violence and aiding and
abetting such conduct in violation of 18 U.S.C.
§§ 924(c)(1)(A)(iii), 2 (2006). After being found a career
offender, see U.S. Sentencing Guidelines Manual § 4B1.1 (2009),
the sentencing court granted the Government’s motion for a
downward departure pursuant to USSG 5K1.2 and sentenced Nelson
far below the Guidelines range of imprisonment. Nelson’s
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), asserting that there were no meritorious arguments
for appeal, but raising for the court’s consideration, the
career offender status imposed on Nelson. Nelson filed a pro se
supplemental brief also challenging the career offender
designation. The Government did not file a brief. After
reviewing the record, we affirm.
Under the Guidelines, Nelson is a career offender if:
(1) [he] was at least eighteen years old at the time
[he] committed the instant offense of conviction; (2)
the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance
offense; and (3) [he] has at least two prior felony
convictions of either a crime of violence or a
controlled substance offense.
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See USSG § 4B1.1(a). As is relevant here, a “crime of violence”
is any offense under state or federal law that is punishable by
a term of imprisonment exceeding one year and has as an element
the use, attempted use or threatened use of force against
another or burglary of a dwelling. See USSG § 4B1.2(a). A
“controlled substance offense” is any offense under federal or
state law, punishable by a term exceeding one year, that
prohibits the manufacture, import, export, distribution or
dispensing of a controlled substance or possession with the
intent to manufacture, import, export, distribute or dispense.
See USSG § 4B1.2(b).
In order to qualify as a predicate conviction:
The term “two prior felony convictions” means (1) the
defendant committed the instant offense of conviction
subsequent to sustaining at least two felony
convictions of either a crime of violence or a
controlled substance offense (i.e., two felony
convictions of a crime of violence, two felony
convictions of a controlled substance offense, or one
felony conviction of a crime of violence and one
felony conviction of a controlled substance offense),
and (2) the sentences for at least two of the
aforementioned felony convictions are counted
separately under the provisions of § 4A1.1(a), (b), or
(c). The date that a defendant sustained a conviction
shall be the date that the guilt of the defendant has
been established, whether by guilty plea, trial, or
plea of nolo contendere.
See USSG § 4B1.2(c).
A prior felony conviction is an adult conviction
punishable by death or imprisonment of a term exceeding one
3
year. An offense committed prior to age eighteen is an adult
conviction if it is classified as an adult conviction under the
laws of the jurisdiction in which the defendant was sentenced.
See USSG § 4B1.2 (comment. n.1). “Prior sentences always are
counted separately if the sentences were imposed for offenses
that were separated by an intervening arrest.” See USSG
§ 4A1.2(a)(2).
In this case, the record is quite clear that Nelson
had the necessary two predicate convictions to be considered a
career offender under the Guidelines. Nelson’s career offender
status was based convictions for burglary, armed robbery and
assault and battery with intent to kill that he received in 1996
and convictions for two counts of 2nd degree burglary and four
counts of possession with intent to distribute cocaine or crack
cocaine that he received in 2004. Although he was sentenced on
the same day for the burglary convictions and the drug
convictions, the sentences were counted separately because those
offenses were separated by an intervening arrest. See USSG
§ 4A1.2(a)(2).
We also conclude there was no procedural or
substantive error at sentencing. The district court used the
properly calculated Guidelines range of imprisonment, considered
the 18 U.S.C. § 3553(a) (2006) sentencing factors and the
Government’s motion for a downward departure.
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Finally, we have reviewed the entire record in this
case and have found no meritorious issues for appeal.
Accordingly, we affirm Nelson’s convictions and sentence. This
court requires counsel to inform Nelson, in writing, of the
right to petition the Supreme Court of the United States for
further review. If he requests that 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 Nelson. 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
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