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United States v. Hawley

United States Court of Appeals, Fourth Circuit

March 26, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JUSTIN TYME HAWLEY, Defendant-Appellant.

          Argued: January 31, 2019

          Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:17-cr-00219-H-1)

         ARGUED:

          Jaclyn L. DiLauro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.

          Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

         ON BRIEF:

          G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.

          Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

          Before WYNN, DIAZ, and RICHARDSON, Circuit Judges.

          WYNN, CIRCUIT JUDGE

         Defendant Justin Hawley pleaded guilty to two counts of being a felon in possession of a firearm and two counts of distributing heroin. The district court sentenced him to fifty-seven months' imprisonment, in part because his criminal history included a prior sentence of thirty days' imprisonment for an uncounseled misdemeanor offense. Defendant argues that the district court contravened the Sentencing Guidelines in calculating his criminal history by counting the prior uncounseled misdemeanor that resulted in imprisonment. Finding no reversible error, we affirm Defendant's sentence.

         I.

         On August 8, 2017, a federal grand jury in the Eastern District of North Carolina returned a superseding four-count indictment charging Defendant with: (1) two counts of possessing a firearm after being convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) & 924; and (2) two counts of distributing heroin, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1). Thereafter, on November 6, 2017, Defendant pleaded guilty to all four counts.

         On March 7, 2018, the district court conducted a sentencing hearing. Before sentencing, the United States Probation Office prepared a presentence report that calculated the Defendant's offense level and criminal history category. The Probation Office first determined that Defendant had an offense level of 19. Next, considering Defendant's prior offenses, the Probation Office determined that Defendant had a criminal history score of 10, and thus Defendant had a criminal history category of V. As relevant here, the Probation Office added one point to Defendant's criminal history score because Defendant pleaded guilty in April 2015 to the misdemeanor offense of providing false information to a police officer and failure to wear a seatbelt. Defendant did not dispute-and therefore conceded for purposes of this appeal-that he validly waived his right to counsel in the proceedings giving rise to that conviction and that he was ...


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