UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4470

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MALCOLM ROLAND ALLEN,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Richard D. Bennett, District Judge. 

(1:08-cr-00222-RDB-1)

Submitted: March 12, 2014 Decided: March 21, 2014

Before WILKINSON, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David I. Schoen, DAVID I. SCHOEN, ATTORNEY AT LAW, Montgomery, 

Alabama, for Appellant. Rod J. Rosenstein, United States 

Attorney, Christopher J. Romano, Assistant United States 

Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Malcolm Roland Allen pled guilty to one count of 

possession with intent to distribute cocaine base and 

methylenedioxy-methamphetamine (“MDMA”), in violation of 21 

U.S.C. § 841(a)(1) (2006), and was sentenced to 216 months in 

prison. Allen asserts that his plea was unknowing and 

involuntary because the indictment against him was allegedly 

duplicitous. Allen also argues that the district court erred in 

imposing his sentence because: (1) he asserts that under United 

States v. Simmons, 649 F.3d 237 (4th Cir. 2011), he should not 

have been sentenced as a career offender; (2) the district court 

refused to apply the Fair Sentencing Act (“FSA”) and Amendment 

750 at his “re-sentencing[;]” and (3) he asserts he should be 

re-sentenced in light of the Supreme Court’s holding in Alleyne 

v. United States, 133 S. Ct. 2151 (2013). We have considered 

Allen’s arguments and find no reversible error.

For instance, we reject Allen’s assertion that the 

indictment against him was duplicitous because it charged in a 

single count the possession with intent to distribute two types 

of narcotics (i.e., cocaine base and MDMA), in violation of his 

Fifth and Sixth Amendment rights. It is well-established that a 

valid guilty plea waives all non-jurisdictional defects in the 

indictment, including a duplicity challenge. See Tollett v. 

Henderson, 411 U.S. 258, 267 (1973) (holding that a valid guilty 
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plea waives non-jurisdictional defects); United States v. 

Cotton, 535 U.S. 625, 631 (2002) (defects in the indictment are 

not jurisdictional); see also United States v. Moloney, 287 F.3d 

236, 239 (2d Cir. 2002). Because we find that Allen’s guilty 

plea was valid, we reject his duplicity argument and affirm his 

conviction.

We also affirm Allen’s sentence. This court reviews a 

criminal sentence, “whether inside, just outside, or 

significantly outside the Guidelines range,” for reasonableness, 

“under a deferential abuse-of-discretion standard.” United 

States v. King, 673 F.3d 274, 283 (4th Cir.), cert. denied, ___ 

U.S. ___, 133 S. Ct. 216 (2012); see Gall v. United States, 552 

U.S. 38, 51 (2007). The first step in this review requires us 

to ensure that the district court committed no significant 

procedural error. United States v. Evans, 526 F.3d 155, 162 

(4th Cir. 2008). Procedural errors include “failing to 

calculate (or improperly calculating) the Guidelines range, 

treating the Guidelines as mandatory, failing to consider the 

[18 U.S.C. § 3553(a) (2012)] factors, selecting a sentence based 

on clearly erroneous facts, or failing to adequately explain the 

chosen sentence — including an explanation for any deviation 

from the Guidelines range.” Gall, 552 U.S. at 51.

“[I]f a party repeats on appeal a claim of procedural 

sentencing error . . . which it has made before the district 
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court, we review for abuse of discretion” and will reverse 

unless we conclude “that the error was harmless.” United States 

v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). For instance, if 

“an aggrieved party sufficiently alerts the district court of 

its responsibility to render an individualized explanation” by 

drawing arguments from § 3553 “for a sentence different than the 

one ultimately imposed,” the party sufficiently “preserves its 

claim.” Id. at 578. However, we review unpreserved nonstructural sentencing errors for plain error. Id. at 576–77. 

If, and only if, we find the sentence procedurally reasonable 

can we consider the substantive reasonableness of the sentence 

imposed. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 

2009).

Although Allen challenges his career offender 

classification on several grounds, we reject his argument that 

he was improperly classified as a career offender. For 

instance, we reject Allen’s argument that his prior narcotics 

conviction was not a proper career offender predicate because it 

was allegedly not “punishable by imprisonment for a term 

exceeding one year” under Simmons. Allen’s prior narcotics 

conviction, rather than being based on North Carolina’s 

statutory sentencing scheme as was the conviction at issue in 

Simmons, was a violation of Maryland law, for which the maximum 

penalty was five years. The fact that Allen served less than a 
5

year in jail is not dispositive of the issue. Cf. United States 

v. Kerr, 737 F.3d 33, 38 (4th Cir. 2013) (“Following our 

decision in Simmons, we have rejected defendants’ arguments that 

they lack the requisite predicate felonies because the actual 

sentence they received under North Carolina law was less than a 

year of imprisonment.”), pet. for cert. filed, Feb. 25, 2014 

(No. 13-8839). We have considered Allen’s arguments pertaining 

to his career offender classification and discern no reversible 

error in the district court’s classification.

We also discern no error in the district court’s 

failure to apply the FSA and Amendment 750 in determining 

Allen’s sentence. It is well-established that the FSA does not 

apply retroactively to defendants, like Allen, whose criminal 

conduct and sentence pre-dated the statute.1 See Dorsey v. 

United States, ___ U.S. ___, 132 S. Ct. 2321, 2331 (2012);

United States v. Allen, 716 F.3d 98, 107 (4th Cir.), cert. 

denied, 133 S. Ct. 2819 (2013). Although the district court 

entered an amended criminal judgment after the FSA’s effective 

date to allow Allen to file a direct appeal, the amended 

judgment was a remedy in Allen’s habeas proceeding and did not 

 1 Although Amendment 750 was made retroactive, Allen’s 

career offender status requires that his offense level remain as 

calculated at his original sentencing. See U.S. Sentencing 

Guidelines Manual (“USSG”) § 4B1.1(b) (2012).
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follow a full re-sentencing. See United States v. Hadden, 475 

F.3d 652, 661 & n.9 (4th Cir. 2007) (recognizing that when a 

district court enters an amended judgment at the end of a habeas 

proceeding as a way to remedy counsel’s ineffective assistance, 

this action only “corrects” the defect in the prior proceedings 

and does not necessarily amount to a full re-sentencing).

Moreover, because Allen was sentenced to a term well 

above the post-FSA mandatory minimum applicable to his crime, 

and since a review of the transcript from Allen’s sentencing 

hearing establishes that the then-applicable ten-year statutory 

mandatory minimum had no influence on the district court’s 

ultimate sentencing determination, we find that any error in the 

district court’s failure to apply the FSA at re-sentencing would 

be harmless. See United States v. Montes-Flores, 736 F.3d 357, 

369-71 (4th Cir. 2013) (reiterating that procedural sentencing 

errors are subject to harmlessness review and explaining that an 

error is harmless if the Court can determine that “the district 

court would have reached the same result even if it had decided 

the . . . issue the other way” and that the resulting “sentence 

would be reasonable even if the . . . issue had been decided in 

the defendant’s favor”) (internal quotation marks and citations 

omitted).
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We have considered the parties’ arguments and find no 

reversible error by the district court.2 Accordingly, we affirm 

the district court’s amended judgment. We dispense with oral 

argument because the facts and legal contentions are adequately 

presented in the materials before this court and argument would 

not aid the decisional process.

AFFIRMED

 2 We reject Allen’s argument that his sentence violates 

Alleyne. Allen’s argument to the contrary, his career offender 

status as found by the district court did not increase the 

statutory mandatory minimum sentence applicable to his crime. 

See USSG § 4B1.1 (2012). Thus, the facts found by the district 

court that allowed Allen to be designated a career offender were 

not required to be included in the indictment against him and 

proven beyond a reasonable doubt. See Alleyne, 133 S. Ct. at 

2155, 2163-64 (holding that any fact that increases a statutory 

mandatory minimum is an element of the offense and must be 

submitted to the jury and found beyond a reasonable doubt).