Argued: May 16, 2013
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:09-cr-00095-FL-1)
Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.
Joshua L. Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Wilkinson and Senior Judge Hamilton joined.
AGEE, Circuit Judge
The United States District Court for the Eastern District of North Carolina originally sentenced Lewis Alston ("Alston") to 150 months' imprisonment, but that sentence was vacated on appeal and remanded for resentencing. See United States v. Alston (Alston I), 447 F.App'x 498, 500 (4th Cir. 2011). On remand, the district court sentenced Alston to an above-Guidelines sentence of 120 months' imprisonment from which he now appeals. For the reasons set forth below, we affirm the judgment of the district court.
I Alston pleaded guilty to possession of five grams or more of crack cocaine in violation of 21 U.S.C. § 841 and to maintaining a dwelling for the use of cocaine in violation of 21 U.S.C. § 856. The government filed a notice of its intent to seek an enhanced penalty pursuant to 21 U.S.C. §§ 841(b)(1)(B) and 851, contending that Alston had prior convictions for felony drug offenses punishable by imprisonment for more than one year and subjecting Alston to a statutory minimum of 10 years' imprisonment. At Alston's original sentencing hearing, the district court concluded that Alston's total offense level was 27 and his criminal history category was V, based upon his prior convictions for felony drug offenses punishable by imprisonment for more than one year. Based upon these calculations, the district court determined that Alston's advisory range of imprisonment under the United States Sentencing Guidelines (the "Guidelines") was 120 to 150 months.
Once the district court determined Alston's Guidelines range, the government moved for an upward departure pursuant to section 4A1.3 of the Guidelines, arguing that the range did not properly account for Alston's criminal history. The district court denied the government's ...