UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5061
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY SCOTT LEACH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (5:09-cr-00016-RLV-DSC-1)
Submitted: September 13, 2011 Decided: September 15, 2011
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Thomas A. O’Malley,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Scott Leach appeals from his 262-month
sentence entered pursuant to his guilty plea to possession with
intent to distribute crack cocaine. On appeal, Leach asserts
that his sentence is procedurally unreasonable because the
district court incorrectly found that he was a career offender.
We affirm.
A defendant is a career offender if he was at least
eighteen years old when the instant offense was committed, the
instant offense is a felony and is either a crime of violence or
a drug offense, and he has at least two prior felony convictions
for crimes of violence or drug offenses. See U.S. Sentencing
Guidelines Manual § 4B1.1(a) (2009). For purposes of career
offender status, the Guidelines define a felony conviction as
“any offense under federal or state law, punishable by
imprisonment for a term exceeding one year,” regardless of the
actual sentence imposed. USSG § 4B1.2(b) & comment. (n.1).
Leach’s only claim on appeal is that his prior North Carolina
conviction for “Possess With Intent To Manufacture, Sell or
Deliver Cocaine” was not a qualifying felony because he received
only a nine-to-eleven-month sentence.
Under the North Carolina Structured Sentencing Act,
sentences are contingent on two factors: the designated “class
of offense” and the offender’s “prior record level.” N.C. Gen.
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Stat. § 15A-1340.13(b) (2009). The parties agree that Leach’s
prior conviction was a Class H offense and that his prior record
level was IV. The parties further agree that, as there were no
findings of mitigating or aggravating circumstances, Leach faced
a minimum sentencing range of nine-to-eleven months. Id. at
§ 15A-1340.17(c). His corresponding maximum sentencing range
was, therefore, eleven-to-fourteen months, depending upon the
minimum sentence chosen by the sentencing court. Id. at
§ 15A-1340.17(d). Therefore, while Leach was only sentenced to
nine-to-eleven months, his offense was punishable by more than
twelve months, as the state court had the discretion to sentence
Leach to a maximum sentence of eleven-to-fourteen months
imprisonment without any further factual or legal findings. See
United States v. Simmons, __ F.3d __, 2011 WL 3607266, *5 (4th
Cir. Aug. 17, 2011) (holding that, for prior North Carolina
convictions where no aggravating or mitigating circumstances are
present, test is whether defendant could receive more than one
year in prison based upon his offense class and prior record
level).
As such, the challenged conviction was a qualifying
conviction for career offender purposes, and the district
court’s calculation of the Guidelines range was not procedurally
unreasonable. Accordingly, we affirm Leach’s sentence. We
grant the Government’s motion for judicial notice of Leach’s
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prior conviction. 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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