United States of America v.  Dell Lloyd Romary

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 00-4460 
DELL LLOYD ROMARY,
Defendant-Appellee. 
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-99-102)
Argued: January 26, 2001
Decided: April 10, 2001
Before NIEMEYER and MICHAEL, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.
Vacated and remanded by published per curiam opinion.
COUNSEL
ARGUED: Kenneth Davis Bell, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellant.
David Ross Lange, Charlotte, North Carolina, for Appellee. ON
BRIEF: Mark T. Calloway, United States Attorney, Brian Lee Whis-
ler, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellant.

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OPINION
PER CURIAM:
This appeal raises the question of whether a particular prior convic-
tion properly was discounted in determining whether the defendant is
a career offender under section 4B1.1 of the federal Sentencing
Guidelines.
I.
In 1999, the defendant, Dell Romary, pled guilty to two counts of
bank robbery. The Presentence Investigation Report ("PSR") for
Romary recommended that he be sentenced as a career offender,
based on two predicate felony convictions for crimes of violence. See
United States Sentencing Commission, Guidelines Manual, § 4B1.1
(Nov. 1998).1 One of the predicate felony convictions was Romary’s
1995 conviction for felony bank robbery, for which Romary was sen-
tenced to sixty-three months imprisonment, followed by three years
of supervised release. The parties, and the court, agree that the 1995
conviction should be counted towards Romary’s potential career
offender status under § 4B1.1.
The second predicate felony conviction which the PSR recom-
mended count towards classifying Romary as a career offender was
Romary’s 1987 conviction for breaking and entering. Romary was
originally sentenced to ten years imprisonment, suspended, with five
years probation for the 1987 conviction. In 1992, Romary’s probation
was revoked and the court "activated" his ten-year sentence of impris-
onment. At sentencing for the underlying 1999 convictions, the defen-
dant argued that the 1987 conviction should not count towards
designating him a career offender. The district court agreed and found
that Romary did not meet the specifications of a career offender under
§ 4B1.1. The government appealed. "We review a question involving
the legal interpretation of Guidelines terminology and the application
1All references herein to the Guidelines refer to the 1998 edition, the
edition in effect at the time of Romary’s sentencing for Romary’s 1999
convictions. See § 1B1.11(a).
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of that terminology to a particular set of facts de novo, as a matter of
law." United States v. Wessells, 936 F.2d 165, 168 (4th Cir. 1991).
II.
There are three prerequisites in order to find that a defendant is a
career offender. See § 4B1.1 ("Career Offender section"). Only one of
these prerequisites is contested herein, namely, whether the defendant
has "at least two prior felony convictions of either a crime of violence
or a controlled substance offense." Id. The parties agree that the
defendant’s 1995 felony conviction constitutes a prior felony convic-
tion within the meaning of the Career Offender section. See § 4B1.2.
The only contested matter is whether the defendant’s 1987 breaking
and entering conviction can be counted as a "prior felony conviction"
for the purposes of the Career Offender section, § 4B1.1.
As with most sections of the Guidelines, there are various applica-
tion notes, definitions, and cross-references which apply to the Career
Offender section. The term "prior felony conviction" is defined, in
relevant part, as "a prior adult federal or state conviction for an
offense punishable by . . . imprisonment for a term exceeding one
year, regardless of . . . the actual sentence imposed." § 4B1.2, com-
ment (n.1). The defendant’s 1987 conviction meets the Guidelines
definition of "prior felony conviction."
The term "crime of violence" is defined to include a crime that is
punishable by imprisonment for a term exceeding one year and is a
burglary of a dwelling. See § 4B1.2(a). The defendant’s 1987 convic-
tion meets the Guidelines definition of "crime of violence."
Thus, the defendant’s 1987 conviction can fairly be called a "prior
felony conviction of a crime of violence." § 4B1.1. The only remain-
ing question is whether this prior felony conviction of a crime of vio-
lence properly can be counted as one of the two predicate felony
convictions needed to trigger the Career Offender section. The deter-
mination of whether convictions are counted under § 4B1.1 is gov-
erned by the provisions of § 4A1.2.2 See § 4B1.2, comment (n.3).
2In other words, the same definitions and instructions for computing
criminal history category apply with equal force to determining whether
to count convictions under the career offender section.
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Section 4A1.2(e) outlines the applicable time period to be used for
determining whether to count a prior felony conviction under the
Career Offender section, and makes such determination based on the
sentences imposed. Section 4A1.2(e) states, in pertinent part:
(1) Any prior sentence of imprisonment exceeding one
year and one month that was imposed within fifteen
years of the defendant’s commencement of the instant
offense is counted. Also count any prior sentence of
imprisonment exceeding one year and one month,
whenever imposed, that resulted in the defendant being
incarcerated during any part of such fifteen-year
period.
(2) Any other prior sentence that was imposed within ten
years of the defendant’s commencement of the instant
offense is counted.
(3) Any prior sentence not within the time periods speci-
fied above is not counted.
Thus, in order to count the defendant’s 1987 prior felony conviction,
the sentence imposed in conjunction therewith must meet the above-
quoted requirements of either § 4A1.2(e)(1) or (2).
The defendant was twice sentenced in connection with the 1987
conviction. The first sentence came in 1987, when the defendant was
sentenced to ten years of imprisonment, suspended, with five years of
supervised probation ("original sentence"). The second sentence was
imposed in 1992, when the court revoked the defendant’s probation
and activated the original ten-year sentence. We undertake herein to
determine whether either of these sentences for the 1987 conviction
meet the applicable limitations listed in 4A1.2(e) and, consequently,
permit the 1987 conviction to be counted under the Career Offender
section, 4B1.1.
A.
The original sentence was ten years imprisonment, suspended, and
five years probation. A sentence of imprisonment is defined to
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exclude any portion thereof which is suspended. See § 4A1.2(b)(2).
Accordingly, the original ten-year sentence imposed for the 1987 con-
viction could not count as a "sentence of imprisonment" exceeding
one year and one month, as is required by § 4A1.2(e)(1) for sentences
imposed within fifteen years of the instant offense (the 1999 bank
robberies). Nor could the original sentence meet the requirements of
§ 4A1.2(e)(2), because it was imposed more than ten years prior to
the instant offense conduct. Thus, the original sentence for the 1987
conviction would not permit the 1987 conviction to be counted. See
§ 4A1.2(e)(3).
Had the original sentence been the only sentence attributable to the
1987 conviction, the 1987 conviction could not be counted under the
Career Offender section. The original sentence, however, was not the
only sentence imposed in conjunction with the 1987 conviction. We
now turn to the second sentence, imposed in 1992.
B.
In 1992, the defendant’s supervised probation was revoked and the
court activated the original ten-year sentence. The 1992 imposition of
an active ten-year sentence meets the Guidelines definition of a "sen-
tence of imprisonment." See § 4A1.2(b). Thus, the defendant was sen-
tenced in 1992 to a sentence of imprisonment that exceeded one year
and one month.3 However, in order for this prior sentence of impris-
onment to be relevant for purposes of the Career Offender section, the
sentence must be linked to a prior felony conviction for a crime of
violence. We have already established that Romary’s 1987 conviction
is a prior felony conviction for a crime of violence, so the only
remaining question is whether the sentence of imprisonment imposed
in 1992 can be attributed to the 1987 conviction. If the 1992 sentence
of imprisonment is attributable to the 1987 conviction, then the sen-
tence for the 1987 conviction falls within the applicable time period
3How much time of the 1992 ten-year sentence that the defendant actu-
ally served in prison does not affect the counting of the sentence as a ten-
year sentence, see, e.g., § 4A1.2, comment (n.2) (sentence pronounced,
not actual time served, is relevant), unless the sentence was suspended,
see § 4A1.2(b). There is no record that any portion of the 1992 sentence
was actually suspended.
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of § 4A1.2(e)(1), and the conviction can be counted towards the cal-
culation of the defendant’s career offender status.
Postrevocation penalties are attributed to the original conviction.
See United States v. Johnson, 120 S. Ct. 1795, 1801 (2000). In John-
son, the Supreme Court held that consideration of the sentence
imposed at revocation as punishment for the violation of conditions
of supervised release, rather than as punishment for the original con-
viction, would raise "serious constitutional questions." Id. at 1800.
Pursuant to Johnson, Romary’s 1992 postrevocation sentence is
attributable to the 1987 prior felony conviction. Accordingly, the
1987 prior felony conviction carried with it, in the form of the 1992
sentence imposition, a "prior sentence of imprisonment exceeding one
year and one month that was imposed within fifteen years of the
defendant’s commencement of the instant offense." § 4A1.2(e)(1).
Also, pursuant to Johnson and § 4A1.2(e)(1), the 1987 conviction is
one "that resulted in the defendant being incarcerated [in 1992] during
any part of such fifteen-year period." § 4A1.2(e)(1). The 1987 convic-
tion, therefore, should have been counted in the district court’s appli-
cation of the Career Offender section, 4B1.1, to the defendant.
III.
For the foregoing reasons, the defendant’s sentence is vacated and
the matter is remanded to the district court for re-sentencing of the
defendant in accordance with this opinion.
VACATED AND REMANDED
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