Convictions Sustained When 17 Years Old Are "Adult" Convictions for Career Offender Determination

US v. Allen: Allen pleaded guilty to conspiracy to distribute crack and was sentenced as a career offender. Allen objected to the career offender determination, arguing that he did not have the requisite number of prior felonies. Specifically, he argued that three convictions for distribution of cocaine sustained in 1995 in North Carolina when he was 17 were not "adult convictions" and the three consecutive six-to-eight month sentences imposed for those offenses could not be aggregated into a single felony conviction for career offender purposes. On appeal, Allen also argued that his sentence violated Booker.

The Fourth Circuit affirmed Allen's sentence. The court held that Allen's 1995 convictions were supported a career offender determination, for two reasons. First, those convictions were "adult" convictions. Because they were entered in the Superior Court of North Carolina rather than the District Court and only District Courts have jurisdiction over juvenile proceedings, Allen must have been treated as an adult for purposes of his 1995 convictions.

Second, the 1995 convictions were felonies as defined by USSG 4B1.2. Allen argued that the 1995 convictions, sustained when he was 17, could only be considered based on the sentences actually imposed (6-8 months) rather than potential sentence (30 months) under Application Note 7 of USSG 4A1.2 ("for offenses committed prior to age eighteen, only those that resulted in adult sentence of imprisonment exceeding one year and one month are counted"). The court rejected that argument, distinguishing US v. Bacon, 94 F.3d 158 (4th Cir. 1996), and US v. Mason, 284 F.3d 555 (4th Cir. 2002), which held that it was proper to look to the definitions in 4A1.2 when determining career offender status. The court held that there was no need to resort to 4A1.2 in this case because 4B1.2 was clear that qualification for career offender status is based on the maximum sentence that could have been imposed for the offense, rather than the sentence actually imposed. Thus, there was no reason to consult 4A1.2.

The court also rejected Allen's Booker argument, holding that his sentence was not plainly erroneous. The court did conclude that it was error and the error was plain for the district court to consider the proffer of the Government as to what a probation officer would testify to regarding the prior convictions. Specifically, the probation officer spoke with officials in North Carolina who confirmed that Allen's 1995 convictions were treated as adult proceedings. Reliance on such information, the court held, violated Shepard v. US, 544 U.S. 13 (2005), and US v. Washington, 404 F.3d 834 (4th Cir. 2005). However, because the plea documents themselves showed that the 1995 convictions were in adult proceedings, the err did not affect Allen's substantial rights. The court also concluded that Allen did not show that the district court would have imposed a different sentence under a post-Booker advisory Guideline scheme to support remand for resentencing under White.