UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4280
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OLANDER RAYMOND RICHARDSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:16-cr-00337-NCT-1)
Submitted: February 13, 2018 Decided: February 20, 2018
Before DUNCAN, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Tiffany T. Jefferson, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North
Carolina, for Appellant. John Mcrae Alsup, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Olander Raymond Richardson appeals from his conviction and 160-month
sentence entered pursuant to his guilty plea to distribution of cocaine base. On appeal,
counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal but questioning the reasonableness of
Richardson’s sentence. Richardson has filed a pro se supplemental brief, raising various
issues discussed below. After a comprehensive review of the record and briefs on appeal,
we affirm.
When reviewing a criminal sentence, we must first ensure that the district court
did not commit a significant procedural error, such as improperly calculating the
Sentencing Guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007). We review
the district court’s factual findings for clear error and legal conclusions de novo. United
States v. White, 850 F.3d 667, 674 (4th Cir. 2017). If there is no procedural error, we
consider the substantive reasonableness of the sentence for abuse of discretion. Gall, 552
U.S. at 51. We presume that a sentence within or below a properly calculated Guidelines
range is substantively reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir.
2012). A defendant can only rebut the presumption by showing the sentence is
unreasonable when measured against the 18 U.S.C. § 3553(a) (2012) factors. United
States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
Counsel questions whether Richardson’s sentence was greater than necessary to
accomplish the goals of sentencing. The record reflects that the district court properly
calculated Richardson’s Guidelines range and reasonably determined that a sentence
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within the Guidelines range was appropriate in his case. The court considered
Richardson’s arguments and, in fact, adopted them as reasoning for the decision not to
depart upwards. Further, the court made an individualized assessment based on the facts
presented, applied relevant § 3553(a) factors to the specific circumstances of the case and
to Richardson, and adequately explained its sentence.
Turning to Richardson’s pro se brief, he first asserts that a prior state conviction
should not have been counted as a predicate career offender conviction because he was
only 17 when he was convicted. In order to qualify as a “prior felony conviction” for
purposes of career offender treatment under U.S. Sentencing Guidelines Manual (USSG)
§ 4B1.1(a)(3) (2016), the prior convictions must each be “a prior adult federal or state
conviction.” USSG § 4B1.2 cmt. n.1. If the prior conviction was for an offense
committed prior to age 18, it qualifies as “an adult conviction” only if it was “classified
as an adult conviction under the laws of the jurisdiction in which the defendant was
convicted.” Id.; see United States v. Mason, 284 F.3d 555, 562 (4th Cir. 2002).
Richardson does not allege that his conviction was a juvenile conviction, and the
record does not indicate a juvenile conviction. Instead, Richardson merely contends that
he was under 18 at the time of his conviction. Because Richardson’s age is not the
deciding factor as to whether a prior conviction can be used as a career offender
predicate, this claim is without merit.
Richardson next argues that the use of his state convictions to enhance his federal
sentence violated the Double Jeopardy Clause. However, enhancement of a sentence does
not constitute new jeopardy or additional punishment for Richardson’s earlier offenses.
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“‘It is a stiffened penalty for the latest crime, which is considered to be an aggravated
offense because a repetitive one.’” United States v. Garrett, 959 F.2d 1005, 1009 (D.C.
Cir. 1992) (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)). In any event, there is no
double jeopardy violation when two separate sovereigns—the United States and the state
of North Carolina—prosecute an individual for the same offense. See Heath v. Alabama,
474 U.S. 82, 89 (1985) (applying separate sovereign exception); Rinaldi v. United States,
434 U.S. 22, 28 (1977) (“[T]he Constitution does not deny the State and Federal
Governments the power to prosecute for the same act.”). Accordingly, Richardson was
not subjected to impermissible double jeopardy as a result of the career offender
enhancement.
Richardson next asserts that he should have only been held responsible for the
drugs involved in the count to which he pled guilty. However, under USSG
§ 1B1.3(a)(2) (2016), drug quantities not specified in the count of conviction are
considered as relevant conduct for sentencing when they are part of the same course of
conduct or common plan or scheme. At his sentencing hearing, both Richardson and
counsel stated that there were no objections to the presentence report (PSR). Pursuant to
Fed. R. Crim. P. 32(i)(3)(A), the sentencing court “may accept any undisputed portion of
the presentence report as a finding of fact.” And even if a defendant objects to a finding
in the PSR, in the absence of an affirmative showing that the information is not accurate,
the court is “free to adopt the findings of the presentence report without more specific
inquiry or explanation.” United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998)
(internal quotation marks and alteration omitted). Given Richardson’s utter failure to
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object to the PSR’s recommendation as to the drug quantities attributable to him and his
related failure to affirmatively show that the information in the PSR was inaccurate, we
conclude there was no error in the district court’s calculation of the drug quantity.
Finally, Richardson asserts that he was subject to a superceding indictment with
more serious charges and that the prosecutor “may have also engaged in prosecutorial
misconduct during the Grand Jury proceeding. Whether intentional or otherwise.” He
contends further that his attorney “may” have failed to properly investigate this. A
prosecutor may not punish a criminal defendant for exercising his rights; to do so violates
due process. United States v. Goodwin, 457 U.S. 368, 372 (1982). To establish
prosecutorial vindictiveness, a defendant must show, through objective evidence, that
“the prosecutor acted with genuine animus toward the defendant” and that “the defendant
would not have been prosecuted but for that animus.” United States v. Wilson, 262 F.3d
305, 314 (4th Cir. 2001). If a defendant cannot produce direct evidence of a vindictive
motive, he can establish a rebuttable presumption of vindictiveness by showing that a
“reasonable likelihood of vindictiveness exists.” Goodwin, 457 U.S. at 373.
Here, Richardson presented absolutely no evidence of prosecutorial
vindictiveness. Rather, he merely speculated that misconduct may have occurred because
of his superceding indictment. This is insufficient to meet his burden. Further, because
he does not establish prosecutorial vindictiveness, he cannot show that counsel was
ineffective for failing to investigate. To the extent there is evidence outside of the record
supporting these claims, they are more properly brought in a 28 U.S.C. § 2255 (2012)
motion.
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In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore affirm Richardson’s
conviction and sentence. This court requires that counsel inform Richardson, in writing,
of the right to petition the Supreme Court of the United States for further review. If
Richardson 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
Richardson. 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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