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United States v. Vol Allen

United States Court of Appeals, Fourth Circuit

November 28, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
BRADFORD D VOL ALLEN, Defendant-Appellant.

          Argued: September 28, 2018

          Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Max O. Cogburn, Jr., District Judge. (1:15-cr-00064-MOC-DLH-1)

         ARGUED:

          Robert Carpenter, DUNGAN, KILBOURNE & STAHL, PA, Asheville, North Carolina, for Appellant.

          Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

         ON BRIEF:

          R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

          Before NIEMEYER and KEENAN, Circuit Judges and Norman K. MOON, Senior United States District Judge for the Western District of Virginia, sitting by designation.

          BARBARA MILANO KEENAN, CIRCUIT JUDGE.

         Bradford D Vol Allen was convicted following his guilty plea to one count of unlawful possession of firearms by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Allen contends that the district court committed two sentencing errors: 1) in increasing his base offense level due to his prior conviction of a "controlled substance offense" under 21 U.S.C. § 843(b), for using a communication facility to facilitate the crime of possession with intent to distribute cocaine base; and 2) in assigning one criminal history point for a prior North Carolina consolidated judgment. Upon our review, we affirm the district court's judgment.

         I.

         In 2016, Allen pleaded guilty to the unlawful possession of firearms by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The probation officer prepared a presentence report (PSR), which included two prior convictions relevant to this appeal. First, in 2009, Allen was convicted of using a communication facility to facilitate the crime of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 843(b) (the Section 843(b) conviction). And second, in 2007, Allen was convicted of two North Carolina misdemeanors, namely, possession of marijuana in an amount less than or equal to one-half ounce, and second-degree trespass. The two misdemeanor convictions were consolidated into one judgment for sentencing under North Carolina law. See N.C. Gen. Stat. § 15A-1340.15(b).

         The probation officer recommended in the PSR that Allen's base offense level be increased to 24 under the United States Sentencing Guidelines (Guidelines) § 2K2.1(a)(2), based on his two prior felony convictions of "controlled substance offenses," including his Section 843(b) conviction. U.S.S.G. § 2K2.1(a)(2). The probation officer also recommended that one point be added under Guidelines § 4A1.1(c) to Allen's criminal history score based on the North Carolina consolidated judgment.

         Allen objected to both recommendations made by the probation officer. First, he argued that the Section 843(b) conviction did not qualify as a "controlled substance offense" for purposes of computing his base offense level. Second, Allen asserted that he should not have been assigned one criminal history point for the North Carolina consolidated judgment due to the allegedly disproportionate effect this point would have on his Guidelines ...


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