United States v. David Cullen

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4776

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

DAVID J. CULLEN,

Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:14-cr-00020-GMG-RWT-1)

Submitted: April 22, 2015 Decided: April 28, 2015

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

J. Mark Sutton, SUTTON & JANELLE, PLLC, Martinsburg, West
Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Anna Krasinski, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

David J. Cullen appeals the 151-month sentence imposed by

the district court after he pled guilty to aiding and abetting

the distribution of heroin, in violation of 18 U.S.C. § 2 (2012)

and 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012). On appeal, Cullen

contends that the district court erred by applying the career

offender enhancement of U.S. Sentencing Guidelines Manual

§ 4B1.1 (2013), and that his sentence is substantively

unreasonable. We affirm.

Because Cullen did not object to his career offender status

in the district court, we review this issue for plain error.

United States v. Price, 777 F.3d 700, 711 (4th Cir. 2015)

(discussing standard). A defendant qualifies as a career

offender if, as relevant here, he had two prior felony

convictions for a crime of violence or a controlled substance

offense. USSG § 4B1.1(a). Cullen argues that one of the

convictions on which the district court relied does not qualify

as a predicate offense for purposes of § 4B1.1(a). He claims,

pursuant to § 4A1.2(d), that his age at the time he was

convicted, coupled with the conviction’s staleness, prevents

reliance on the conviction as a predicate for career offender

purposes. We disagree.

To qualify as a predicate conviction under § 4B1.1(a), a

conviction must be counted separately under § 4A1.1(a)-(c).

2
USSG § 4B1.2(c) & n.3; United States v. Mason, 284 F.3d 555, 558

(4th Cir. 2002). Section 4A1.2(d) restricts the prior

convictions that may be counted for purposes of § 4A1.1(a)-(c),

based on the defendant’s age at the time he committed the

predicate offense. See USSG § 4A1.2(d). We conclude that the

prior conviction was appropriately counted under § 4A1.1(a).

Cullen concedes that he was convicted as an adult, and his

sentence of imprisonment—which included the term of imprisonment

he served following the revocation of his probation for the

underlying conviction, USSG § 4A1.2(k)(1)—exceeded one year and

one month and fell within the relevant time period. USSG

§ 4A1.2(d)(1), (k)(2)(A). Therefore, Cullen has not shown that

the district court erred, much less plainly erred, by counting

the challenged conviction as a predicate for career offender

purposes.

Next, Cullen claims that the district court failed to

appropriately weigh the 18 U.S.C. § 3553(a) (2012) factors in

light of his background and the circumstances of his offense.

We review a sentence for reasonableness, applying “a deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S.

38, 41 (2007); United States v. Lymas, 781 F.3d 106, 111 (4th

Cir. 2015). Having found no procedural error, see Lymas, 781

F.3d at 111, “we proceed to ‘assess the substantive

reasonableness of the sentence imposed,’” id. at 112 (quoting

3
Gall, 552 U.S. at 51), under “the totality of the

circumstances,” Gall, 552 U.S. at 51. “[A] sentence within a

properly calculated advisory Guidelines range is presumptively

reasonable” on appeal. United States v. Dowell, 771 F.3d 162,

176 (4th Cir. 2014) (internal quotation marks omitted). “A

defendant can only rebut the presumption by demonstrating that

the sentence is unreasonable when measured against the § 3553(a)

factors.” Id. (internal alteration and quotation marks

omitted).

Here, the record shows that the district court listened to

Cullen’s arguments, balanced Cullen’s background and the

circumstances of his offense with his rehabilitation efforts,

and concluded that a sentence at the bottom of the Guidelines

range satisfied the sentencing objectives in § 3553(a). Cullen

has failed to rebut on appeal the presumption of reasonableness

accorded his within-Guidelines sentence. Thus, the district

court did not abuse its discretion in sentencing Cullen.

Accordingly, we affirm the district court’s judgment. We

dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

AFFIRMED