United States v. Hawley (P)

Following the defendant’s drug- and firearm-related convictions, the district court properly sentenced him to 57 months’ imprisonment.

The district court imposed this sentence in part to account for the defendant’s criminal history, which included a prior sentence of 30 days’ imprisonment for an uncounseled misdemeanor offense. The appellant contends that it was error to count this offense in calculating his sentence. But the background commentary to the Sentencing Guidelines at § 4A1.2 provides a general rule that prior sentences are to be counted if they are “not otherwise excluded.” Because this plain language contemplates that it is providing a non-exhaustive list, the inference of negative implication proposed by the defendant is inappropriate.

In addition, because the defendant voluntarily proceeded without counsel in the prior proceeding, the district court did not err in counting the prior misdemeanor conviction in determining defendant’s Guidelines’ advisory range.

Affirmed. Judge Richardson wrote a concurring opinion.

United States v. Hawley (P), No. 18-4167, Mar. 26, 2019. 4th Cir. (Wynn) from EDNC at Raleigh (Howard).

Categories: 4th U.S. Circuit Court of Appeals, Opinions, Published

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