United States of America v. Mario Sundray Douglas, a/k/a Bird

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5026
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIO SUNDRAY DOUGLAS, a/k/a Bird,
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-00310-WO-1)
Submitted: September 6, 2011 Decided: September 19, 2011
Before MOTZ, AGEE, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney,
Randall S. Galyon, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Mario Sundray Douglas appeals his 117-month sentence
for possession with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2006). For the
reasons set forth below, we vacate Douglas’ sentence and remand
for resentencing.
On appeal, Douglas argues that his prior state
conviction for possession with intent to sell and deliver
cocaine was not punishable under North Carolina law by a term of
imprisonment exceeding one year and therefore he was improperly
designated as a career offender. Because Douglas did not
challenge his career offender designation before the district
court, we review his claim for plain error. United States v.
Hargrove, 625 F.3d 170, 184 (4th Cir. 2010), petition for cert.
filed (Mar. 8, 2011).
Douglas was sentenced consistent with our decision in
United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005), which
held that, in determining whether a conviction is for a crime
punishable by a prison term exceeding one year, a district court
must consider the maximum aggravated sentence that would be
imposed for that crime upon a defendant with the worst possible
criminal history. Id. Although Douglas was sentenced to only
eight to ten months of imprisonment for the state drug offense,
he was found guilty of a Class H felony under North Carolina

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law, which carried a maximum penalty of more than one year of
imprisonment. See N.C. Gen. Stat. §§ 90-95(a); 15A-1340.17(c),
(d) (LexisNexis 2009).
Thus, because under North Carolina law the maximum
aggravated sentence that could be imposed for felony possession
with intent to sell and deliver cocaine upon a defendant with
the worst possible history exceeded one year, under Harp,
Douglas qualified as a career offender as defined in U.S.
Sentencing Guidelines Manual §§ 4B1.1(a), 4B1.2(b) (2008).1 We
recently overruled Harp, however, with our en banc decision in
United States v. Simmons, No. 08-4475, 2011 WL 3607266, at *3
(4th Cir. Aug. 17, 2011), holding that a North Carolina offense
may not be classified as a felony based upon the maximum
aggravated sentence that could be imposed upon a repeat offender
if the individual defendant was not eligible for such a
sentence. Id. at *8.
Based on our review of the record, we find that an
offender possessing the same prior criminal record as Douglas at
the time of his offense could not have received a sentence
exceeding one year under North Carolina’s structured sentencing
1 Douglas concedes that his prior state conviction for
felony discharge of a weapon into occupied property was properly
considered a predicate conviction for career offender purposes
pursuant to USSG § 4B1.1(a).

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scheme. See N.C. Gen. Stat. § 15A-1340-17(c), (d). We
therefore conclude the district court erred in sentencing
Douglas as a career offender and that the error was plain.2
Moreover, in light of the downward departure that was granted by
the district court at sentencing, it appears that Douglas may
well have received a lower sentence if he had not been
erroneously designated as a career offender,3 and we therefore
conclude that the plain error affected Douglas’ substantial
rights and that “there exists a nonspeculative basis to infer
prejudice that ‘seriously affects the fairness, integrity or
public reputation of judicial proceedings.’” United States v.
Slade, 631 F.3d 185, 192 (4th Cir.) (citing United States v.
Olano, 507 U.S. 725, 736 (1993)), cert. denied, 131 S. Ct. 2943
(2011).
Accordingly, we vacate Douglas’ sentence, including
the term of supervised release,4 and remand for resentencing in
accordance with Simmons. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
2 The district court, of course, did not have the benefit of
Simmons at the time of Douglas’ sentencing.
3 We express no opinion on the ultimate sentence Douglas may
receive on remand.
4 Because we vacate the sentence in its entirety, we find it
unnecessary to consider Douglas’ argument that his eight-year
term of supervised release was unreasonable.

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materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED

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