United States of America v. Gary Allen Blanton

*The Hon. Thomas B. Russell, United States District Judge for the Western District of Kentucky, sitting
by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0214n.06
Filed: March 28, 2006
05-5116
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GARY ALLEN BLANTON,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY
Before: DAUGHTREY and GILMAN, Circuit Judges, and RUSSELL, * District Judge.
PER CURIAM. The defendant, Gary Allen Blanton, appeals from the imposition of
a 151-month prison sentence following his guilty plea to the charge of bank robbery. He
contends that the district court erred in subjecting him to increased punishment as a career
offender based upon two prior felony convictions for burglary. At the sentencing hearing,
however, the defendant expressly conceded that the crimes used to enhance his sentence
were “crimes of violence.” As a result, we hold that this issue has been waived, and we
affirm the district court’s sentencing order.

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05-5116
United States v. Blanton
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The defendant pleaded guilty to a single-count indictment charging him with taking
approximately $13,000 by force, violence, and intimidation from a federally insured bank.
As part of a plea agreement, the defendant and the government stipulated that the proper
base offense level for the crime of conviction under the appropriate sentencing guideline
was 20. The plea agreement, however, explicitly provided that “[n]o agreement exists
about the Defendant’s criminal history category pursuant to U.S.S.G. Chapter 4.”
Furthermore, although the defendant explicitly waived his right to appeal the conviction or
the sentence or to attack the guilty plea collaterally, the government conceded in open
court that any issue concerning Blanton’s potential career-offender status “would be an
issue that would be appropriate to not include in the waiver.”
In preparing its pre-sentence report for the district court, the probation office noted
that Blanton had previously been convicted of burglaries of dwellings in January 1989 in
Kentucky, and May 1991 in Virginia. Because those convictions were for “crimes of
violence,” as that term is defined in § 4B1.2 of the 2003 United States Sentencing
Guidelines Manual, the report recommended that the defendant be sentenced as a career
offender. See U . S . SENTENCING GUIDELINES MANUAL § 4B1.1(b) (2003). As a result, instead
of a sentence of 63-78 months as an offense level 20, criminal history category V offender,
Blanton was subject to a sentence of 151-188 months as an offense level 29, criminal
history category VI offender.

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05-5116
United States v. Blanton
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At the sentencing hearing, the district judge concurred with the probation office’s
assessment and ruled that the two burglary convictions were in fact “crimes of violence.”
See U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a)(2) (2003). Furthermore, the court ruled
that even though the Kentucky conviction was imposed more than 15 years before the
commission of the February 2004 bank robbery, that earlier conviction could still be used
to support a career-offender designation because the defendant’s parole status following
his release had been revoked and he had actually served additional prison time within the
15-year period immediately preceding the commission of the bank robbery. See U . S .
SENTENCING GUIDELINES MANUAL § 4A1.2(e)(1) (2003). Having reached those conclusions,
the district judge sentenced Blanton as a career offender to the minimum 151-month
sentence provided by the applicable guideline range.
In his appellate brief, the defendant raises only a single issue – whether the district
court properly considered the 1991 Virginia conviction to be a “crime of violence” for
purposes of determining the proper sentencing range under the guidelines. During the
sentencing hearing, however, the defendant’s attorney challenged only whether the 1989
Kentucky conviction was within the time frame applicable to the career-offender
determination. Indeed, defense counsel at sentencing specifically conceded that both of
Blanton’s prior burglary convictions “would otherwise qualify as crimes of violence for
purposes of the guidelines.”

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05-5116
United States v. Blanton
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In United States v. Sloman, 909 F.2d 176, 182 (6th Cir. 1990), we noted that “[a]n
attorney cannot agree in open court with a judge’s proposed course of conduct and then
charge the court with error in following that course.” Blanton has thus waived any objection
he might have to the district judge’s determination that the Virginia burglary conviction
should be considered, for guidelines purposes, a prior conviction for a “crime of violence.”
The judgment of the district court is AFFIRMED.

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