UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4697

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHARLES STEVEN MCDONALD,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Greenville. James C. Fox, Senior

District Judge. (4:13-cr-00061-F-1)

Submitted: June 30, 2015 Decided: July 14, 2015

Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington, 

Kentucky, for Appellant. Thomas G. Walker, United States Attorney, 

Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Charles Steven McDonald appeals his sentence after a jury 

conviction for distributing cocaine base. On appeal, McDonald 

contends his sentence is procedurally unreasonable because one of 

his prior North Carolina drug convictions was not punishable by 

more than one year in prison and does not qualify as a predicate 

felony controlled substance offense for enhancement purposes under 

U.S. Sentencing Guidelines Manual § 4B1.1 (2013); and even if he 

is a career offender, his sentence at the bottom of his advisory 

Guidelines range is substantively unreasonable because it is 

greater than necessary to achieve the goals of sentencing under 18 

U.S.C. § 3553(a) (2012). We affirm.

We review the reasonableness of a sentence for abuse of 

discretion. United States v. Lymas, 781 F.3d 106, 111 (4th Cir. 

2015) (citing Gall v. United States, 552 U.S. 38, 41 (2007)). 

First, we consider whether the district court committed a 

significant procedural error, such as improperly calculating the 

advisory Guidelines range. Gall, 552 U.S. at 51. If the sentence 

is procedurally reasonable, we consider whether it is 

substantively reasonable, taking into account the totality of the 

circumstances. Id. On appeal, we presume that a sentence within 

or below a properly calculated Guidelines range is substantively 

reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir. 

2012). The presumption can only be rebutted by showing that the 
3

sentence is unreasonable when measured against the 18 U.S.C. 

§ 3553(a) factors. United States v. Louthian, 756 F.3d 295, 306 

(4th Cir.), cert. denied, 135 S. Ct. 421 (2014).

In determining whether the Guidelines calculation was proper, 

we review the district court’s factual findings for clear error 

and its legal conclusions de novo. United States v. Dodd, 770 

F.3d 306, 309 (4th Cir. 2014), cert. denied, 135 S. Ct. 1514 (2015)

(citation and quotation marks omitted). “Where a Guidelines 

application involves a mixed question of law and fact, the 

applicable standard turns on the nature of the circumstances at 

issue.” United States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 

2014). “If the application turns on a question of fact, the clear 

error standard applies; if it turns on a legal interpretation, de 

novo review is appropriate.” Dodd, 770 F.3d at 309 (citation 

omitted). “A district court’s application turns primarily on fact 

where . . . it depend[s] on an evaluation and weighing of the 

factual details.” Id. at 309 n.3 (citation and internal quotation 

marks omitted).

“Generally, we review de novo an issue of law whether a prior 

offense qualifies” as a predicate “for purposes of the Guidelines’ 

career offender enhancement.” United States v. Carthorne, 726 

F.3d 503, 509 (4th Cir. 2013), cert. denied, 134 S. Ct. 1326 (2014)

(citation omitted). “However, when a defendant has not objected 
4

to that classification before the district court, we review such 

a question for plain error.” Id. (citations omitted).

We have reviewed the record and conclude that McDonald’s 

sentence is both procedurally and substantively reasonable, and 

the district court neither erred nor abused its discretion. The 

probation officer determined that McDonald was a career offender 

based on prior North Carolina convictions in paragraphs 29 and 30 

of the presentence report. The report noted that he was sentenced 

to 12 to 15 months in custody for the paragraph 29 conviction. 

For the paragraph 30 conviction, the report noted that he was 

sentenced to 12 to 15 months in custody, consecutive to another 

conviction, suspended, and 36 months of probation. Although 

McDonald was sentenced on the same day for these convictions, they 

were separated by an intervening arrest.

McDonald’s counsel in the district court filed no objections 

to the presentence report and conceded that he was a career 

offender. McDonald filed pro se objections claiming that he should 

not receive any criminal history points for the paragraph 30 

conviction because he was sentenced on the same day as the 

convictions in paragraphs 28 and 29, and he was not a career 

offender because he did not have the requisite two prior controlled 

substance offenses. The Government responded to the objection at 

sentencing that the offenses were “appropriately scored separately 

and considered separate predicate convictions for career offender 
5

purposes.” The district court properly overruled the objection. 

See USSG § 4A1.2(a)(2).

McDonald never claimed in the district court that his prior 

conviction in paragraph 30 was not punishable by more than one 

year in prison. However, he claims for the first time on appeal 

that he “was not exposed to a sentence of a year or more in prison, 

but was sentenced to a term of 36 months probation for the 

offense.” Moreover, he claims that the offense was a Class I 

felony under North Carolina law that was not punishable by more 

than one year in prison. Thus, while he concedes that his 

conviction in paragraph 29 was a predicate for career offender 

purposes, he contends that the paragraph 30 conviction was not.

The Government has responded that McDonald’s argument ignores 

that he was also sentenced to 12 to 15 months in custody, suspended 

and consecutive to another sentence, for the paragraph 30 

conviction. In addition, to remove any question that the 

conviction qualifies as a felony, the Government has provided the 

state judgments in an addendum to its brief. The judgment for the 

paragraph 30 conviction shows that it was in fact a Class G felony. 

The Government notes the judgments were provided to McDonald’s 

former counsel in the district court. Former counsel’s response 

to McDonald’s pro se letter filed in the district court before 

sentencing supports this claim.
6

McDonald has moved to strike the addendum because the 

judgments “were never introduced by the government in the district 

court or considered by the district court at McDonald’s 

sentencing.” As the Government notes, McDonald does not contest 

that they are copies of public records or that they accurately 

reflect his sentences. McDonald also contends that based on the 

evidence before the district court at sentencing, his paragraph 30 

conviction did not qualify as a predicate conviction for career 

offender purposes. We disagree. McDonald never objected that his 

prior conviction was a Class I felony or was otherwise not 

punishable by more than one year in prison in the district court; 

counsel conceded that he was a career offender; the court properly 

denied the objection that he made based on the record; and the 

court was permitted to accept the “undisputed portion of the 

presentence report as a finding of fact.” Fed. R. Crim. P. 

32(i)(3)(A); see also United States v. Revels, 455 F.3d 448, 451 

n.2 (4th Cir. 2006). There was no reason for the Government to 

offer the judgments into evidence, as there was no objection 

calling them into question. See Fed. R. Crim. P. 32(i)(2).

“[T]he qualification of a prior conviction [as a sentencing 

predicate] does not depend on the sentence [a defendant] actually 

received but on the maximum sentence permitted for his offense of 

conviction.” United States v. Bercian-Flores, 786 F.3d 309, 316 

(4th Cir. 2015) (citations and internal quotation marks omitted). 
7

Thus, the fact that McDonald’s prison sentence was suspended did

not mean that his offense was not punishable by more than one year 

in prison. On the other hand, the fact that he actually received 

a custody sentence exceeding one year, albeit suspended, supported

the determination that the prior offense was punishable by more 

than one year in prison.

Nonetheless, to remove any doubt created by McDonald’s 

factual claim made for the first time on appeal that his prior 

conviction was a Class I felony that was not punishable by more 

than one year in prison, and because the accuracy of the state 

judgments included in the addendum to the Government’s brief is 

not disputed, we conclude that it is in the interest of justice to 

take judicial notice of the judgments. See Fed. R. Evid. 201; 

Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239-40 (4th Cir. 

1989). We therefore deny McDonald’s motion to strike. 

We further conclude that McDonald has failed to rebut our 

presumption that his sentence is substantively reasonable. The 

district court considered his arguments and imposed a sentence at 

the bottom of the Guidelines range in recognition of the 

significant impact resulting from his designation as a career 

offender. However, the district court reasonably determined that 

a significant prison term was appropriate because he had not 

responded favorably to prior judicial intervention.
8

Accordingly, we deny McDonald’s motion to strike and affirm 

the district court’s 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