UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5296

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ART DEWARREN FOSTER,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Spartanburg. Henry M. Herlong, Jr., District

Judge. (7:06-cr-00147-HMH)

Submitted: November 14, 2007 Decided: December 21, 2007

Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael D. Brown, RAINEY & BROWN, LLC, Spartanburg, South Carolina,

for Appellant. Regan Alexandra Pendleton, Assistant United States

Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
1

Anders v. California, 386 U.S. 738 (1967).

- 2 -

PER CURIAM:

Art Dewarren Foster pleaded guilty to conspiring to

possess with intent to distribute fifty kilograms or more of

cocaine and fifty grams or more of cocaine base and was sentenced

to 210 months in prison. On appeal, Foster’s attorney has filed an

Anders brief,1 stating that there are no meritorious grounds for

appeal but raising the issue of whether the district court complied

with Fed R. Crim. P. 32(i)(3)(B) in ruling on Foster’s objection to

the Presentence Report (“PSR”). Foster has filed a pro se

supplemental brief arguing that he was improperly determined to be

a career offender. After a thorough review of the record, we

affirm.

Under Rule 32(i)(3)(B) of the Federal Rules of Criminal

Procedure, a district court must rule on objections to the PSR or

find that a ruling is unnecessary because the disputed matter will

not affect sentencing or will not be considered in sentencing.

Counsel suggests the district court erred in ruling on Foster’s

objection to his classification as a career offender by relying on

the PSR and the investigation conducted by the probation officer,

without viewing the original state court sentencing sheets.

We conclude the district court properly considered and

ruled at sentencing on Foster’s objection to career offender status

based on his 1996 convictions. Moreover, the district court did
- 3 -

not err in relying on the information contained in the PSR and the

testimony of the probation officer at sentencing. When, as here,

the district court relies on information in the PSR in making

findings, the defendant bears the burden of establishing that the

information relied on by the district court is incorrect; mere

objections are insufficient. United States v. Love, 134 F.3d 595,

606 (4th Cir. 1998). The only information in the PSR Foster

claimed was inaccurate was his date of birth. He did not dispute

that he was convicted in South Carolina’s General Sessions court

and was sentenced under South Carolina’s Youthful Offender Act.

Nor did he dispute the PSR’s recitation of the sentences imposed

and time served on those sentences. These facts, rather than

Foster’s age, were relevant to the court’s determination that the

prior convictions were predicate felonies for career offender

classification.

Career offender classification requires, among other

conditions, that the defendant has at least two prior felony

convictions for crimes of violence or drug offenses. See U.S.

Sentencing Guidelines Manual (“USSG”) § 4B1.1. The Sentencing

Guidelines define “prior felony conviction” as “a prior adult

federal or state conviction for an offense punishable by death or

imprisonment for a term exceeding one year, regardless of . . . the

actual sentence imposed.” USSG § 4B1.2, comment. (n.1).

Furthermore, “[a] conviction for an offense committed before age
- 4 -

eighteen is an adult conviction if it is classified as an adult

conviction under the laws of the jurisdiction in which the

defendant was convicted. . . .” Id.

In addition, before an adult conviction is counted for

career offender purposes, the court must consult the guidelines

provision for computing criminal history. USSG § 4B1.2, comment.

(n. 3). United States v. Mason, 284 F.3d 555, 558 (4th Cir. 2002).

Offenses committed prior to age eighteen are to be included in the

criminal history calculation if: the defendant was convicted as an

adult and received a sentence of imprisonment exceeding one year

and one month, § 4A1.2(d)(1); the defendant has an adult or

juvenile sentence to confinement of at least sixty days and was

released from such confinement within five years of his

commencement of the instant offense, § 4A1.2(d)(2)(A); or the

defendant has an adult or juvenile sentence imposed within five

years of the defendant’s commencement of the instant offense,

§ 4A1.2(d)(2)(B).

South Carolina does not consider youthful offender

convictions as either adult or juvenile; instead, it gives trial

judges the discretion to treat youthful offenders as either

juveniles or adults depending on the circumstances of the case.

S.C. Code Ann. § 24-19-50; see United States v. Pinion, 4 F.3d 941,

944 (11th Cir. 1993). Thus, proceeding under the analysis of USSG

§ 4A1.2, both Foster’s 1996 convictions are countable under
2

Because Foster actually served approximately four years on

the armed robbery convictions, his convictions arguably count

toward career offender status under USSG § 4A1.2(d)(1).

Nevertheless, because Foster’s armed robbery conviction is clearly

countable under § 4A1.2(d)(2)(A), it is unnecessary to decide

whether it is also countable under § 4A1.2(d)(1). 

- 5 -

§ 4A1.2(d)(2)(A). Foster was released from confinement on the

armed robbery convictions on May 30, 2003. On the assault charge,

Foster’s parole was revoked on August 6, 2004, and he was ordered

incarcerated for sixty days to be served on weekends. The PSR does

not reveal when or whether this confinement ended, but at the

earliest, it was March 2005. Both of these dates are well within

five years of October 2005, the commencement of the instant

offense.2

 Accordingly, the district court properly considered

Foster’s 1996 convictions as predicate felonies for career offender

purposes. 

In accordance with Anders, we have reviewed the entire

record for meritorious issues and have found none. Accordingly, we

affirm Foster’s conviction and sentence. This court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review. If the

client requests that a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may move in this

court for leave to withdraw from representation. Counsel’s motion

must state that a copy thereof was served on the client. We

dispense with oral argument because the facts and legal contentions
- 6 -

are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED