Application of enhancement did not change the sentence imposed

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Any error resulting from the district court’s application of a sentencing enhancement for career offenders was harmless because, even if the enhancement was not applied, the court would have imposed the same sentence and that sentence would have been reasonable.

Background

Appellant Randy Lee Carney pleaded guilty to two counts of distribution and possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). A presentence report prepared by the probation office determined that Carney was a career offender under U.S.S.G. § 4B1.1(a) based on his felony conviction for possession with intent to sell and deliver marijuana in 2012 and his conviction for assault on a law enforcement officer in 2013. Without imposition of the sentencing enhancement the sentencing guidelines provided a range of 57 to 71 months. With the enhancement, the range increased to 151 to 188 months.

Carney objected to the career offender enhancement, claiming that his 2013 conviction did not constitute a crime of violence and could not be considered a predicate offense under the career offender statute. The district court overruled his objection and applied the sentencing enhancement.

Nevertheless, the court determined that a sentence below the guideline range was appropriate and sentenced Carney to 120 months in custody for each count. The court explicitly stated that it would have given Carney this same sentencing even if the career offender enhancement had not been applied. Carney now appeals that decision.

Analysis

The incorrect application of a career offender enhancement is a procedural error subject to harmless error review. Under this standard, the sentence will be upheld only if the court is certain that the result at sentencing would have been the same in the absence of the enhancement.

Here, the district court explicitly stated it would have imposed the same sentence even if it had not applied the career offender enhancement. While Carney argues that the district court would not have delayed his sentencing hearing if the court was truly planning to impose the same sentence regardless of whether the enhancement applied, this speculation is insufficient to rebut the court’s detailed explanation for its express pronouncement.

The record likewise reflects that the district court conducted a thorough, individualized assessment of Carney and his criminal conduct as required by 18 U.S.C. § 3553(a). Specifically, in determining that there was a need to incapacitate, deter and punish Carney, the district court considered his age, substance abuse problems, lack of education, criminal history and the repetitive nature of the current charges. Given these factors, the sentence imposed would be reasonable even if the career offender enhancement had not been applied.

Affirmed.

United States v. Carney, Case No. 18-4081, Jan. 30, 2019. 4th Cir. (Duncan), Appeal from EDNC at Raleigh (Dever). Mark Russell Sigmon for Appellant; Phillip Anthony Rubin for Appellee. VLW 019-2-042. 9 pp.