No: 04-4425 UNITED STATES OF AMERICA v. James Buckner

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 04-4425
UNITED STATES OF AMERICA
v.
JAMES BUCKNER,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(Crim. No. 03-cr-00352)
District Judge: Hon. Christopher C. Connor
Submitted pursuant to Third Circuit LAR 34.1(a)
Friday, September 16, 2005
Before: ROTH, McKEE and FISHER,
Circuit Judges
(Opinion filed: November 22, 2005 )
OPINION
McKEE, Circuit Judge.
James Buckner appeals from his judgment of sentence, arguing that the district
court improperly applied one criminal history point for his prior state conviction for
possession of a small amount of marijuana. We disagree and for the reasons that follow,
will affirm the judgment of sentence.

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Because we write only for the parties, we recite only the facts and procedural1
history necessary to our brief discussion of this appeal.
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I.
Buckner was sentenced under the previously mandatory regime of the Federal
Sentencing Guidelines. However, the Supreme Court’s decision in United States v.
Booker, U.S. , 125 S.Ct. 738 (2005), worked a sea change in federal sentencing.
Under Booker, mandatory enhancement of a maximum sentence under the sentencing
guidelines based on facts neither admitted by the defendant nor found by a jury, violates
the Sixth Amendment. Thus, after Booker, the sentencing guidelines are “effectively
advisory.” Id. at 757. Accordingly, district courts will now consider the applicable
advisory guidelines in addition to the factors set forth in 18 U.S.C. § 3553(a).
Although Booker was decided after Buckner was sentenced, Booker is applicable
to all cases on direct review. 125 S.Ct. at 769. Therefore, in accordance with the
practice we established in United States v. Davis, 407 F.3d 162 (3d Cir. 2005), Buckner
and his counsel were directed to state whether they wished to challenge Buckner’s
sentence under Booker. Buckner has decided that he does not challenge his sentence
pursuant to Booker. Accordingly, we will decide his appeal on the merits. See Davis, at
166.
II.1
Buckner makes two arguments in his appeal. First, he contends that the state

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Section 1B1.9 of the guidelines provides:2
The sentencing guidelines do not apply to any count of conviction that is a
Class B or C misdemeanor or an infraction.
Buckner argues that under Pennsylvania law, the crime of possession of a small amount
of marijuana is punishable by a maximum term of imprisonment of 30 days, or a fine of
up to $500, or both. 35 PA. CONS. STAT. ANN. §§ 780-113(a)(31), (g). Therefore,
because the guidelines provide that a “Class C misdemeanor is any offense for which the
maximum authorized term of imprisonment is more than five days but not more than
thirty days,” U.S.S.G. 1B1.9 cmt. n.1, Buckner contends that the state marijuana
conviction cannot be included in the calculation of his criminal history category.
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conviction for a small amount of marijuana is classified as a Class C misdemeanor under
federal law and, therefore, pursuant to § 1B1.9 of the guidelines, that conviction should
not have been included in the calculation of his criminal history category. We disagree.2
Section 1B1.9 applies to a situation where the defendant is charged with a Class B or C
misdemeanor. It has nothing to do with the calculation of a defendant’s criminal history
category. Rather, § 4A1.2(c)(1) provides that all misdemeanor and petty offenses are
counted for criminal history purposes, except for certain enumerated offenses that are not
factored into the calculation. Possession of marijuana is not listed as one of those
enumerated offenses that limits the counting.
Buckner’s second argument is that because he was fined for the state marijuana
conviction and not sentenced to prison, that conviction cannot be included in the criminal
history calculation. We again disagree. The Supreme Court has held that an
uncounseled misdemeanor offense that carries with it no sentence of imprisonment is

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properly counted in the calculation of a defendant’s criminal history category, and
Buckner’s argument to the contrary is therefore without merit. Nichols v. United States,
511 U.S. 738, 746-49 (1994).
III.
For the above reasons, we will affirm the judgment of sentence.

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