Scribd Logo
Upload

Welcome to Scribd!

  • 72 views

    United States v. Kevin McCormick, 4th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    1) The defendant pled guilty to drug distribution charges and was sentenced as a career offender based on prior convictions. 2) The defendant appealed, arguing his prior convictions were improperly used to classify him as a career offender. 3) While the defendant's appeal was pending, a relevant court ruling changed how prior convictions should be evaluated for career offender status. 4) The appeals court affirmed the defendant's conviction but vacated his sentence and remanded the case back to the lower court for resentencing in light of the changed legal precedent.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd

    United States v. Kevin McCormick, 4th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    72 views5 pages
    1) The defendant pled guilty to drug distribution charges and was sentenced as a career offender based on prior convictions. 2) The defendant appealed, arguing his prior convictions were improperly used to classify him as a career offender. 3) While the defendant's appeal was pending, a relevant court ruling changed how prior convictions should be evaluated for career offender status. 4) The appeals court affirmed the defendant's conviction but vacated his sentence and remanded the case back to the lower court for resentencing in light of the changed legal precedent.

    Original Description:

    Filed: 2011-11-17 Precedential Status: Non-Precedential Docket: 10-4983

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    1) The defendant pled guilty to drug distribution charges and was sentenced as a career offender based on prior convictions. 2) The defendant appealed, arguing his prior convictions were improperly used to classify him as a career offender. 3) While the defendant's appeal was pending, a relevant court ruling changed how prior convictions should be evaluated for career offender status. 4) The appeals court affirmed the defendant's conviction but vacated his sentence and remanded the case back to the lower court for resentencing in light of the changed legal precedent.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    72 views5 pages

    United States v. Kevin McCormick, 4th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    1) The defendant pled guilty to drug distribution charges and was sentenced as a career offender based on prior convictions. 2) The defendant appealed, arguing his prior convictions were improperly used to classify him as a career offender. 3) While the defendant's appeal was pending, a relevant court ruling changed how prior convictions should be evaluated for career offender status. 4) The appeals court affirmed the defendant's conviction but vacated his sentence and remanded the case back to the lower court for resentencing in light of the changed legal precedent.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    of 5

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 10-4983

    UNITED STATES OF AMERICA,


    Plaintiff Appellee,
    v.
    KEVIN DEVON MCCORMICK,
    Defendant - Appellant.

    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro.
    William L. Osteen,
    Jr., District Judge. (1:08-cr-00263-WO-1)

    Submitted:

    October 27, 2011

    Decided:

    November 17, 2011

    Before KING, AGEE, and KEENAN, Circuit Judges.

    Affirmed in part, vacated in part, and remanded by unpublished


    per curiam opinion.

    David Bruce Freedman, CRUMPLER, FREEDMAN, PARKER & WITT,


    Winston-Salem, North Carolina, for Appellant. Ripley Rand,
    United States Attorney, Anand P. Ramaswamy, Assistant United
    States Attorney, Greensboro, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Kevin

    Devon

    McCormick

    pled

    guilty

    pursuant

    to

    written plea agreement to one count of distribution of crack


    cocaine,

    in

    violation

    Following

    the

    entry

    withdraw it.

    of

    of

    21

    U.S.C.

    his

    guilty

    plea,

    841(a)(1)
    McCormick

    (2006).
    moved

    to

    The district court denied that motion after a

    hearing.
    The

    district

    court

    sentenced

    McCormick

    as

    career

    offender, pursuant to U.S. Sentencing Guidelines Manual (USSG)


    4B1.1 (2009).

    At sentencing, McCormick lodged an objection to

    his designation as a career offender, arguing that he could not


    have

    received

    sentence

    in

    excess

    of

    one

    year

    for

    certain

    predicate offenses because of the class of the state offenses


    and his prior record level.

    However, McCormick noted that his

    argument failed under United States v. Harp, 406 F.3d 242 (4th
    Cir. 2005).

    The district court denied McCormicks objection and

    sentenced him to 270 months imprisonment.


    McCormick

    timely

    conviction and sentence.

    appealed

    the

    district

    courts

    Following the issuance of this courts

    decision in United States v. Simmons, 649 F.3d 237 (4th Cir.


    2011) (en banc), McCormick filed an unopposed motion to vacate
    his sentence and remand to the district court for resentencing.
    This course of action was recommended as well by the Government
    in

    its

    brief.

    We

    affirm

    McCormicks
    2

    conviction,

    grant

    his

    motion to vacate his sentence, and remand to the district court


    for resentencing in light of Simmons.
    McCormicks sole challenge to his conviction is that
    the district court erred in denying his motion to withdraw his
    guilty

    plea.

    This

    court

    reviews

    for

    abuse

    of

    discretion

    district courts denial of a motion to withdraw a guilty plea.


    United States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007).

    defendant seeking to withdraw his guilty plea bears the burden


    of demonstrating that withdrawal should be granted.

    Id.

    In

    deciding whether to permit withdrawal, a district court should


    consider: (1) whether defendant offers credible evidence that
    his plea was involuntary; (2) whether the defendant credibly
    asserts his legal innocence; (3) the extent of a delay between
    entry of the plea and filing of the motion; (4) whether the
    defendant

    has

    withdrawal

    had

    of

    close

    the

    assistance

    plea

    will

    prejudice

    F.3d 421, 424 (4th Cir. 2000).


    leads

    assessed

    us

    these

    to

    conclude

    factors

    and

    counsel;
    the

    (5)

    whether

    government

    or

    United States v. Ubakanma, 215

    (6) waste judicial resources.

    record

    of

    Our thorough review of the

    that

    did

    not

    the

    district

    abuse

    its

    court

    fully

    discretion

    in

    denying McCormicks motion to withdraw his guilty plea.


    McCormick

    next

    challenges

    his

    sentence.

    He

    claims

    that the predicate offenses used to designate him as a career


    offender, pursuant to USSG 4B1.1, were not punishable by a
    3

    term exceeding one year.

    A defendant is a career offender under

    the Guidelines if he was at least eighteen when he committed the


    instant offense, that offense is a felony crime of violence or
    controlled substance offense, and the defendant has at least
    two prior felony convictions of either a crime of violence or a
    controlled

    substance

    offense.

    USSG

    4B1.1(a).

    prior

    felony conviction must, among other requirements, be punishable


    for a term exceeding one year.
    McCormick

    USSG 4B1.2 cmt. n.1.

    contends

    that

    his

    career

    offender

    designation was improperly predicated upon multiple prior North


    Carolina convictions that were not punishable by more than one
    year of imprisonment.

    When McCormick raised this argument in

    the district court, it was foreclosed by our decision in Harp,


    406

    F.3d

    at

    246-47

    (holding

    that

    to

    determine

    whether

    conviction is for a crime punishable by a prison term exceeding


    one year, the court should consider the maximum aggravated
    sentence that could be imposed for that crime upon a defendant
    with the worst possible criminal history and not the maximum
    sentence that could be imposed on the actual defendant being
    sentenced (emphasis omitted)).

    Recently, however, this court

    overruled Harp with our en banc decision in Simmons, 649 F.3d at


    249-50 (holding that consideration of hypothetical aggravating
    factors and criminal history is inappropriate when determining
    whether a prior offense constitutes a felony).
    4

    In
    enhanced

    light

    sentencing

    consideration.
    whether

    the

    We

    of

    Simmons,

    as

    cannot

    underlying

    McCormicks

    career

    offender

    determine

    North

    challenge

    from

    Carolina

    to

    warrants

    the

    further

    current

    convictions

    his

    record

    supporting

    McCormicks designation as a career offender constitute prior


    felony convictions.
    district

    court

    That determination should be made by the

    after

    supplementing

    the

    record

    as

    needed.

    Accordingly, we grant McCormicks motion to vacate his sentence


    and remand to the district court for resentencing consistent
    with Simmons. 1
    Based
    conviction,

    on

    vacate

    the
    his

    foregoing,

    sentence,

    court for further proceedings. 2

    and

    we

    affirm

    remand

    to

    McCormicks
    the

    district

    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 IN PART,
    VACATED IN PART,
    AND REMANDED

    We of course do not fault the Government or the district


    court for relying upon unambiguous circuit authority at the time
    of McCormicks conviction.
    2

    In view of this disposition, we find it unnecessary to


    consider McCormicks Fair Sentencing Act claim.

    You might also like