UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4776
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
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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
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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
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