Filed: Mar. 21, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4470 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MALCOLM ROLAND ALLEN, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:08-cr-00222-RDB-1) Submitted: March 12, 2014 Decided: March 21, 2014 Before WILKINSON, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. David I. Schoen, DAVID I. SCHOEN,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4470 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MALCOLM ROLAND ALLEN, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:08-cr-00222-RDB-1) Submitted: March 12, 2014 Decided: March 21, 2014 Before WILKINSON, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. David I. Schoen, DAVID I. SCHOEN, ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4470
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MALCOLM ROLAND ALLEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:08-cr-00222-RDB-1)
Submitted: March 12, 2014 Decided: March 21, 2014
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David I. Schoen, DAVID I. SCHOEN, ATTORNEY AT LAW, Montgomery,
Alabama, for Appellant. Rod J. Rosenstein, United States
Attorney, Christopher J. Romano, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Malcolm Roland Allen pled guilty to one count of
possession with intent to distribute cocaine base and
methylenedioxy-methamphetamine (“MDMA”), in violation of 21
U.S.C. § 841(a)(1) (2006), and was sentenced to 216 months in
prison. Allen asserts that his plea was unknowing and
involuntary because the indictment against him was allegedly
duplicitous. Allen also argues that the district court erred in
imposing his sentence because: (1) he asserts that under United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011), he should not
have been sentenced as a career offender; (2) the district court
refused to apply the Fair Sentencing Act (“FSA”) and Amendment
750 at his “re-sentencing[;]” and (3) he asserts he should be
re-sentenced in light of the Supreme Court’s holding in Alleyne
v. United States,
133 S. Ct. 2151 (2013). We have considered
Allen’s arguments and find no reversible error.
For instance, we reject Allen’s assertion that the
indictment against him was duplicitous because it charged in a
single count the possession with intent to distribute two types
of narcotics (i.e., cocaine base and MDMA), in violation of his
Fifth and Sixth Amendment rights. It is well-established that a
valid guilty plea waives all non-jurisdictional defects in the
indictment, including a duplicity challenge. See Tollett v.
Henderson, 411 U.S. 258, 267 (1973) (holding that a valid guilty
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plea waives non-jurisdictional defects); United States v.
Cotton, 535 U.S. 625, 631 (2002) (defects in the indictment are
not jurisdictional); see also United States v. Moloney,
287 F.3d
236, 239 (2d Cir. 2002). Because we find that Allen’s guilty
plea was valid, we reject his duplicity argument and affirm his
conviction.
We also affirm Allen’s sentence. This court reviews a
criminal sentence, “whether inside, just outside, or
significantly outside the Guidelines range,” for reasonableness,
“under a deferential abuse-of-discretion standard.” United
States v. King, 673 F.3d 274, 283 (4th Cir.), cert. denied, ___
U.S. ___,
133 S. Ct. 216 (2012); see Gall v. United States,
552
U.S. 38, 51 (2007). The first step in this review requires us
to ensure that the district court committed no significant
procedural error. United States v. Evans,
526 F.3d 155, 162
(4th Cir. 2008). Procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
[18 U.S.C. § 3553(a) (2012)] factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the
chosen sentence — including an explanation for any deviation
from the Guidelines range.”
Gall, 552 U.S. at 51.
“[I]f a party repeats on appeal a claim of procedural
sentencing error . . . which it has made before the district
3
court, we review for abuse of discretion” and will reverse
unless we conclude “that the error was harmless.” United States
v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). For instance, if
“an aggrieved party sufficiently alerts the district court of
its responsibility to render an individualized explanation” by
drawing arguments from § 3553 “for a sentence different than the
one ultimately imposed,” the party sufficiently “preserves its
claim.”
Id. at 578. However, we review unpreserved non-
structural sentencing errors for plain error.
Id. at 576–77.
If, and only if, we find the sentence procedurally reasonable
can we consider the substantive reasonableness of the sentence
imposed. United States v. Carter,
564 F.3d 325, 328 (4th Cir.
2009).
Although Allen challenges his career offender
classification on several grounds, we reject his argument that
he was improperly classified as a career offender. For
instance, we reject Allen’s argument that his prior narcotics
conviction was not a proper career offender predicate because it
was allegedly not “punishable by imprisonment for a term
exceeding one year” under Simmons. Allen’s prior narcotics
conviction, rather than being based on North Carolina’s
statutory sentencing scheme as was the conviction at issue in
Simmons, was a violation of Maryland law, for which the maximum
penalty was five years. The fact that Allen served less than a
4
year in jail is not dispositive of the issue. Cf. United States
v. Kerr, 737 F.3d 33, 38 (4th Cir. 2013) (“Following our
decision in Simmons, we have rejected defendants’ arguments that
they lack the requisite predicate felonies because the actual
sentence they received under North Carolina law was less than a
year of imprisonment.”), pet. for cert. filed, Feb. 25, 2014
(No. 13-8839). We have considered Allen’s arguments pertaining
to his career offender classification and discern no reversible
error in the district court’s classification.
We also discern no error in the district court’s
failure to apply the FSA and Amendment 750 in determining
Allen’s sentence. It is well-established that the FSA does not
apply retroactively to defendants, like Allen, whose criminal
conduct and sentence pre-dated the statute. 1 See Dorsey v.
United States, ___ U.S. ___, 132 S. Ct. 2321, 2331 (2012);
United States v. Allen, 716 F.3d 98, 107 (4th Cir.), cert.
denied,
133 S. Ct. 2819 (2013). Although the district court
entered an amended criminal judgment after the FSA’s effective
date to allow Allen to file a direct appeal, the amended
judgment was a remedy in Allen’s habeas proceeding and did not
1
Although Amendment 750 was made retroactive, Allen’s
career offender status requires that his offense level remain as
calculated at his original sentencing. See U.S. Sentencing
Guidelines Manual (“USSG”) § 4B1.1(b) (2012).
5
follow a full re-sentencing. See United States v. Hadden, 475
F.3d 652, 661 & n.9 (4th Cir. 2007) (recognizing that when a
district court enters an amended judgment at the end of a habeas
proceeding as a way to remedy counsel’s ineffective assistance,
this action only “corrects” the defect in the prior proceedings
and does not necessarily amount to a full re-sentencing).
Moreover, because Allen was sentenced to a term well
above the post-FSA mandatory minimum applicable to his crime,
and since a review of the transcript from Allen’s sentencing
hearing establishes that the then-applicable ten-year statutory
mandatory minimum had no influence on the district court’s
ultimate sentencing determination, we find that any error in the
district court’s failure to apply the FSA at re-sentencing would
be harmless. See United States v. Montes-Flores, 736 F.3d 357,
369-71 (4th Cir. 2013) (reiterating that procedural sentencing
errors are subject to harmlessness review and explaining that an
error is harmless if the Court can determine that “the district
court would have reached the same result even if it had decided
the . . . issue the other way” and that the resulting “sentence
would be reasonable even if the . . . issue had been decided in
the defendant’s favor”) (internal quotation marks and citations
omitted).
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We have considered the parties’ arguments and find no
reversible error by the district court. 2 Accordingly, we affirm
the district court’s amended 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
2
We reject Allen’s argument that his sentence violates
Alleyne. Allen’s argument to the contrary, his career offender
status as found by the district court did not increase the
statutory mandatory minimum sentence applicable to his crime.
See USSG § 4B1.1 (2012). Thus, the facts found by the district
court that allowed Allen to be designated a career offender were
not required to be included in the indictment against him and
proven beyond a reasonable doubt. See Alleyne, 133 S. Ct. at
2155, 2163-64 (holding that any fact that increases a statutory
mandatory minimum is an element of the offense and must be
submitted to the jury and found beyond a reasonable doubt).
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