UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4613
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK PITTMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. James C. Fox, Senior District Judge. (4:15-cr-00068-F-2)
Submitted: August 31, 2017 Decided: April 3, 2018
Before GREGORY, Chief Judge, DIAZ, Circuit Judge, and SHEDD, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Jenna Turner Blue, BLUE LLP, Raleigh, North Carolina, for Appellant. Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derek Pittman pled guilty to conspiring to possess with intent to distribute 500
grams or more of cocaine and carrying and using a firearm during and in relation to a
drug trafficking crime. The district court sentenced Pittman to a below-Sentencing
Guidelines range of 197 months of imprisonment. His counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issues
for appeal, but raising for the court’s consideration whether Pittman had the requisite
predicate felonies to receive the career offender enhancement. Pittman did not file a pro
se supplemental brief and the Government did not file a brief. 1 After a careful review of
the record, we affirm.
We review a sentence for reasonableness, applying “a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). The court
first determines whether the district court committed significant procedural error, such as
incorrect calculation of the Guidelines range, inadequate consideration of the 18 U.S.C.
§ 3553(a) (2012) sentencing factors, or insufficient explanation of the sentence imposed.
United States v. Dowell, 771 F.3d 162, 170 (4th Cir. 2014).
In evaluating the district court’s Guidelines calculations, we review the district
court’s factual findings for clear error and its legal conclusions de novo. United States v.
1
The Government also did not move to dismiss this untimely appeal. In
accordance with our opinion in United States v. Oliver, 878 F.3d 120 (4th Cir. 2017), we
address the merits of Pittman’s Anders appeal and are bound to complete a full review of
the record on appeal for meritorious issues.
2
White, 771 F.3d 225, 235 (4th Cir. 2014). In her Anders brief, counsel concedes that
Pittman’s North Carolina robbery with a dangerous weapon and felony drug offenses are
properly classified as predicate convictions under the career offender guideline. In light
of recent authority from the Supreme Court and this court, this concession is well taken.
Under the career offender guideline, “crime of violence” is defined as an offense
punishable by more than one year of imprisonment that “(1) has as an element the use,
attempted use, or threatened use of physical force against the person of another [(the
“force clause”)], or (2) is burglary of a dwelling, arson, or extortion, involves use of
explosives [(the “enumerated offenses clause”)], or otherwise involves conduct that
presents a serious potential risk of physical injury to another [(the “residual clause”)].”
U.S. Sentencing Guidelines Manual § 4B1.2(a) (2015). 2 The commentary to USSG
§ 4B1.2 enumerates other offenses as crimes of violence, including “robbery.” USSG
§ 4B1.2 cmt. n.1.
In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court
determined that the residual clause of the Armed Career Criminal Act (ACCA), reaching
offenses that “involve[] conduct that presents a serious potential risk of physical injury to
another,” see 18 U.S.C. § 924(e)(2)(B)(ii) (2012), is unconstitutionally vague. 135 S. Ct.
at 2556-63. In Beckles v. United States, 137 S. Ct. 886 (2017), however, the Supreme
Court declined to extend the reasoning in Johnson to the Guidelines, holding that the
2
Section 4B1.2(a)(2) was amended in August 2016 to remove the residual or
“otherwise” clause, as well as to remove burglary and add robbery to the offenses
enumerated in the Guideline’s text. USSG app. C supp., amend. 798 (2016).
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Guidelines are not subject to a due process vagueness challenge and that the residual
clause under USSG § 4B1.2(a) is not void for vagueness. 137 S. Ct. at 895. In light of
Beckles, Pittman cannot raise a vagueness challenge to his predicate crime of violence
under Johnson.
Any potential challenge Pittman could raise to the classification of his predicate
crime of violence also is foreclosed by recent precedent from this Circuit. The district
court relied on Pittman’s conviction for robbery with a dangerous weapon in applying the
career offender guideline. We recently held that the North Carolina offense of robbery
with a dangerous weapon categorically qualifies as a “violent felony” under the ACCA’s
force clause. See United States v. Burns-Johnson, 864 F.3d 313, 315, 320 (4th Cir.), cert
denied, 138 S. Ct. 461 (2017). As this court relies on decisions evaluating whether an
offense qualifies as an ACCA violent felony “interchangeably” with decisions evaluating
whether an offense qualifies as a Guidelines crime of violence, United States v. Montes-
Flores, 736 F.3d 357, 363 (4th Cir. 2013) (internal quotation marks omitted), we
determine that Pittman’s North Carolina conviction for robbery with a dangerous weapon
equally qualifies as a crime of violence under the force clause of USSG § 4B1.2(a). In
view of this authority, Pittman cannot raise a meritorious challenge to his enhanced base
offense level based on his conviction for a crime of violence.
Pittman’s North Carolina conviction for felony possession with intent to sell or
deliver cocaine also properly qualified as a felony drug offense under the Guidelines.
Pittman’s sentence for the offense consisted of 10 to 12 months of imprisonment plus a
9-month term of supervised release. Counsel suggested at sentencing that Pittman’s prior
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North Carolina felony conviction was not punishable by a term exceeding one year
because the North Carolina Justice Reinvestment Act of 2011 required that nine months
of his sentence be spent in post-release supervision. Counsel noted, however, that this
court addressed this issue in United States v. Barlow, 811 F.3d 133 (4th Cir. 2015). In
Barlow, we held that the defendant’s convictions for speeding to elude arrest and
breaking and entering were felony convictions supporting his conviction for being a felon
in possession of a firearm. We rejected the defendant’s contention that the nine-month
supervised release term shortened his term of imprisonment to less than a year, finding
that the North Carolina law intentionally includes post-release supervision as part of the
term of imprisonment. Id. at 138-40. Accordingly, as counsel asserts, Pittman’s
challenge on this ground is foreclosed. There was no procedural error in the district
court’s sentence.
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore affirm Pittman’s convictions
and sentence. This court requires that counsel inform Pittman, in writing, of the right to
petition the Supreme Court of the United States for further review. If Pittman 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 Pittman. 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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