decided as corrected. second correction.: December 14, 1989.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert D. Potter, Chief District Judge. (CR-88-26-C).
Widener and Phillips, Circuit Judges, and Doumar, United States District Judge for the Eastern District of Virginia, sitting by designation.
James Lee Thompson appeals the sentence imposed upon him by the district court following its finding that Thompson is a career offender under the Federal Sentencing Guidelines. Thompson's career offender status turns on whether a prior South Carolina conviction for pointing a firearm at a person constitutes a crime of violence as that term is defined by the Sentencing Guidelines. We answer this question of first impression in the affirmative and therefore affirm Thompson's sentence.
On May 25, 1988, Thompson pled guilty to possessing with intent to distribute 22 grams of heroin, and to distributing 22 grams of heroin, both in violation of 21 U.S.C. § 841(a)(1). The plea agreement between the government and Thompson, pursuant to Rule 11(e)(1)(B) of the Federal Rules of Criminal Procedure, provided that the government would recommend to the court that any active sentence should not exceed eleven years, even though such a sentence would depart downward from the Sentencing Guidelines if the court found Thompson to be a career offender. The government agreed to make this recommendation because Thompson had provided substantial assistance to the government's investigation of other persons and promised to continue to do so.
Following the district court's acceptance of Thompson's plea, a probation officer prepared a presentence report. The presentence report stated that the applicable Guideline imprisonment range for Thompson was 210 to 262 months, based on the officer's determination that Thompson was a career offender within the meaning of Guideline § 4B1.1. The probation officer's career offender determination was based on Thompson's related 1976 South Carolina convictions for obtaining drugs by false prescription and pointing a firearm at a person, and on his 1981 South Carolina conviction for felonious distribution of heroin. The presentence report explained that if Thompson was not found to be a career offender, the applicable Guideline imprisonment range would be from 21 to 27 months.
Thompson challenged the presentence report's career offender determination both in a written statement of sentencing factors and at the sentencing hearing. Thompson contended that he did not have two prior convictions for either crimes of violence or controlled substances offenses because neither the false prescription offense nor the pointing a firearm offense for which he had been convicted was either a crime of violence or a controlled substances offense within the meaning of the career offender guideline, Guideline § 4B1.1.
The government responded that the pointing a firearm offense was a crime of violence. The district court agreed and found that Thompson was a career offender. In accord with the recommendation of the probation officer and the plea agreement, the court departed downward from the applicable guideline range because of Thompson's substantial assistance to the government, sentencing him to 132 months' imprisonment, 3 years' supervised release, and a special assessment of $100.00. This appeal followed.*fn1
Under the Federal Sentencing Guidelines, a defendant facing sentencing is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of crimes of violence or controlled substances offenses. Guideline § 4B1.1.
Thompson concedes that he was over eighteen years of age on March 16, 1988, the date on which the events giving rise to his federal conviction for possessing and distributing heroin occurred. Thompson concedes that this offense, as well as his 1981 South Carolina conviction for felonious distribution of heroin, are controlled substance offenses within the meaning of the career offender guideline. Thompson contends that the 1976 South Carolina conviction for pointing a firearm at a person was not a crime of ...