Criminal – Sentencing – ‘Crime of Violence’ – Pointing a Gun

U.S. v. King (Lawyers Weekly No. 12-01-0304, 17 pp.) (Keenan, J.) No. 10-5054, March 8, 2012; USDC at Charleston, S.C. (Norton, J.) 4^th Cir. Full-text opinion.

Holding: The 4^th Circuit upholds a 96-month sentence on defendant’s conviction of possession of a firearm as a convicted felon; the sentencing court did not err in enhancing defendant’s sentence for his prior “crime of violence” for pointing and presenting a firearm, and in treating his sentence after an Alford plea to involuntary manslaughter as a “prior sentence” under federal sentencing guidelines.

Police responding to a domestic call did a check for warrants on both parties and discovered an outstanding warrant for defendant for probation violations. After defendant was arrested, police searched him and found a loaded .357 caliber revolver in his pocket. He later pleaded guilty to possession of the firearm as a convicted felon, without benefit of a plea agreement.

A presentence report recommended that defendant’s 2005 South Carolina conviction for pointing and presenting a firearm qualified as a predicate “crime of violence” under USSG § 2K2.1(a)(4)(A), thereby resulting in a base offense level of 20. The PSR also recommended three points for defendant’s criminal history score on the basis of his Alford plea to the crime of involuntary manslaughter, based on his firing a gun during an altercation in which one person was killed. The district court overruled defendant’s objection to these recommendations, adopted the PSR and sentenced defendant to 96 months’ imprisonment.

We apply a categorical approach to determine whether the offense of pointing and presenting a firearm qualifies as a “crime of violence” under the sentencing guidelines. Here, because defendant was convicted under S.C. Code § 16-23-410 for pointing and presenting a firearm, he necessarily pointed and presented a firearm in a “threatening” manner. We conclude defendant’s conviction under this statute was for an offense that has as an element the threatened use of physical force against the person of another; therefore, it qualifies as a “crime of violence” under the guidelines definition of that term.

Defendant next contends the district court erred in adding three points to his criminal history score, because the term of imprisonment received after his Alford plea to the involuntary manslaughter charge does not qualify as a “prior sentence” imposed on an “adjudication of guilt” within the meaning of USSG § 4A1.2(a)(1). Alternatively, defendant contends that U.S. v. Alston, 611 F.3d 219 (4^th Cir. 2010), supports his position that a term of imprisonment after an Alford plea does not qualify as a “prior sentence” under § 4A1.2(a)(1). We disagree with defendant’s arguments.

The 3^rd Circuit considered this precise issue in U.S. v. Mackins, 218 F.3d 263 (3^rd Cir. 2000), and held that a sentence imposed after an Alford plea qualifies as a “prior sentence” under the guidelines. Other circuits have held in analogous contexts that convictions resulting from Alford pleas can serve as predicate convictions for purposes of sentencing enhancements.

We disagree that only adjudications of guilt that are listed in § 4A1.2(a)(1), namely, a guilty plea, trial or plea of nolo contendere, fall within the definition in that section. A defendant’s entry of an Alford plea does not affect the adjudication of defendant’s guilt nor the trial court’s imposition of sentence. We agree with the 3^rd Circuit that a sentence imposed following an Alford plea qualifies as a “prior sentence” within the meaning of § 4A1.2(a)(1).

Finally, we conclude the district court did not impose a procedurally unreasonable sentence by granting the government’s motion for an upward variance and imposing sentence without providing an adequate explanation at the sentencing hearing. The district court analyzed defendant’s criminal history in its entirety, as well as specific prior convictions and reasonably concluded defendant’s criminal history demonstrated he had engaged in increasingly violent conduct. The court supported the variant sentence by citing several particular factors of 18 U.S.C. § 3553(a), which the court determined required the sentence ultimately imposed.

Sentence affirmed.