UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-5107

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARKEENUS CLEAVON WILKERSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Asheville. Martin K. Reidinger, 

District Judge. (1:10-cr-00032-MR-13)

Submitted: August 16, 2012 Decided: August 21, 2012

Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Amy Lee Copeland, AMY LEE COPELAND, LLC, Savannah, Georgia, for 

Appellant. Amy Elizabeth Ray, Assistant United States Attorney, 

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Markeenus Cleavon Wilkerson pled guilty, pursuant to a 

plea agreement, to conspiracy to possess with intent to 

distribute fifty grams or more of cocaine base and five 

kilograms or more of cocaine, in violation of 21 U.S.C. 

§§ 841(a)(1), 846 (2006). He was sentenced to 168 months’ 

imprisonment. Wilkerson timely appeals.

On appeal, counsel has filed a brief pursuant to 

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

are no meritorious issues for appeal but raising the following 

questions: (1) whether Wilkerson’s guilty plea was conducted in 

compliance with Fed. R. Crim. P. 11; (2) whether Wilkerson’s two 

prior felony convictions were proper predicates for the career 

offender Guideline; (3) whether application of the Fair 

Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2327 

(“FSA” or “the Act”), would have resulted in a lower sentence; 

and (4) whether Wilkerson’s sentence is substantively 

reasonable. Wilkerson has filed a pro se supplemental brief 

arguing that the magistrate judge did not comply with Rule 

11(b)(3) in accepting Wilkerson’s guilty plea, and that his 

sentence is substantively unreasonable because the district 

court did not adequately consider sentencing disparity between 

codefendants under 18 U.S.C. § 3553(a)(6) (2006). We affirm. 
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First, counsel and Wilkerson both challenge the 

validity of the guilty plea. Our review of the plea hearing 

reveals that the magistrate judge substantially complied with 

the dictates of Rule 11 in accepting Wilkerson’s plea, and we 

perceive no reason to question its validity. See United 

States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc). 

Although the magistrate judge deferred until sentencing the 

determination that a factual basis existed for the plea, Rule 

11(b)(3), the parties stipulated to this delay in the plea 

agreement and this court has approved such a procedure. United 

States v. Ketchum, 550 F.3d 363, 366-67 (4th Cir. 2008). 

Therefore, we affirm Wilkerson’s conviction.

Next, we examine whether two prior convictions were 

properly considered as predicates for Wilkerson’s career 

offender status. “We review de novo a question concerning 

whether a prior state conviction qualifies as a prior felony 

conviction under the career offender provision.” United 

States v. Jones, 667 F.3d 477, 482 (4th Cir. 2012). Under U.S. 

Sentencing Guidelines Manual (“USSG”) § 4B1.1 (2010), a 

defendant is a career offender if he was at least eighteen at 

the time of the present offense, that offense is either a felony 

crime of violence or a felony drug offense, and the defendant 

has at least two prior felony convictions for crimes of violence 

or controlled substances. Wilkerson was in his thirties at the 
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time of this felony drug offense, and he had one prior North 

Carolina conviction for felony possession with intent to sell 

cocaine and one for felony discharging a firearm into a vehicle. 

Although Wilkerson was sentenced for both convictions 

on the same day, the district court correctly counted both 

convictions because they were separated by an intervening 

arrest. USSG §§ 4A1.2(a)(2); 4B1.2(c). The drug conviction is 

a proper predicate because it was an offense punishable by 

imprisonment over one year and violated a state law prohibiting 

possession of a controlled substance with intent to distribute. 

USSG § 4B1.2(b). Although Wilkerson was seventeen at the time 

of the offense, he was convicted as an adult. USSG § 4B1.2 cmt. 

n.1. 

Wilkerson’s other predicate offense, felony discharge 

of a firearm into an occupied vehicle, was properly counted as a 

crime of violence because it “has as an element the use, 

attempted use, or threatened use of physical force against the 

person of another.” USSG § 4B1.2 cmt. n.1; see United States v. 

Curtis, 645 F.3d 937, 940-43 (7th Cir. 2011) (finding similar 

Illinois statute to be crime of violence under USSG 

§ 4B1.2(a)(1)). Wilkerson was sentenced to ten years for that 

offense. Accordingly, he was properly sentenced as a career 

offender.
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Next, counsel questions whether application of the FSA 

would affect Wilkerson’s sentence. Wilkerson’s conspiracy 

offense occurred before the effective date of the Act, but he 

was sentenced after that date. The Supreme Court has recently 

held that the FSA’s new, lower mandatory minimums apply in the 

post-Act sentencing of pre-Act criminal conduct. Dorsey v. 

United States, 132 S. Ct. 2321, 2335-36 (2012). Therefore, 

Wilkerson, on direct appeal, can reap any benefit conveyed by 

the FSA. As counsel concedes, however, because Wilkerson’s 

sentence was driven by his career offender status rather than by 

21 U.S.C. § 841(b), the statutory change did not affect his 

sentence. 

Before the FSA, Wilkerson, charged with fifty grams or 

more of cocaine base and with a 21 U.S.C. § 851 information of a 

prior conviction for a felony drug offense, faced twenty years 

to life under 21 U.S.C. § 841(b)(1)(A) (2006). After the Act’s 

effective date, he faces ten years to life under 21 U.S.C.A. 

§ 841(b)(1)(B) (West 1999 & Supp. 2012). 

As a career offender, however, Wilkerson’s base 

offense level was dictated by the statutory maximum applicable 

to the offense. USSG § 4B1.1(b). Both before and after the 

effective date of the FSA, because of his prior felony drug 

conviction, Wilkerson faced a maximum sentence of life, 21 

U.S.C. § 841(b)(1)(A) (2006); 21 U.S.C.A. § 841(b)(1)(B) (West 
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1999 & Supp. 2012), for an offense level of 37. USSG 

§ 4B1.1(b)(1). Thus, the new statute has no impact on 

Wilkerson’s Guidelines range and the sentence imposed.

Finally, both counsel and Wilkerson challenge the 

substantive reasonableness of Wilkerson’s sentence. We review a 

sentence for reasonableness, under an abuse of discretion 

standard. Gall v. United States, 552 U.S. 38, 51 (2007). We

first review for significant procedural errors, including 

whether the district court improperly calculated the Guidelines 

range, failed to consider the § 3553(a) factors, based its 

sentence on clearly erroneous facts, or failed to adequately 

explain the sentence. Id. Only if we find a sentence 

procedurally reasonable may we consider its substantive 

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

Cir. 2009). 

As we discussed above, the district court properly 

determined Wilkerson to be a career offender, and that status 

dictated both his base offense level of 37 and his criminal 

history category (“CHC”) of VI. USSG § 4B1.1(b). With a threelevel deduction for acceptance of responsibility, he faced a 

sentencing range of 262 to 327 months’ imprisonment. The 

district court granted the Government’s motion for downward 

departure, for a new range of 188 to 235 months. The court 

ultimately sentenced Wilkerson below this new range, to 168 
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months. In announcing sentence, the district court fully 

explained its reasoning and addressed the issues raised by 

counsel and by Wilkerson in his allocution. The court’s careful 

attention to sentencing produced no procedural errors, and we 

therefore find the sentence procedurally reasonable.

We assess the substantive reasonableness of a sentence

under the totality of the circumstances to determine whether the 

district court abused its discretion in imposing a 168-month 

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

2012). Wilkerson’s sentence is below the recalculated 

Guidelines range, and as such is presumptively reasonable. Id.

Neither counsel nor Wilkerson has successfully 

rebutted this presumption. Counsel concedes as much, noting 

that Wilkerson received two downward departures, and that he was 

sentenced within the range requested by counsel. In his pro se 

brief, Wilkerson asserts that the district court did not 

adequately weigh the sentencing factor set out in 18 U.S.C. 

§ 3553(a)(6), “the need to avoid unwarranted sentencing 

disparities among defendants with similar records who have been 

found guilty of similar conduct.” The district court 

specifically addressed this point at sentencing, however, noting 

that any disparity in sentence between Wilkerson and his 

codefendant was based on Wilkerson’s much higher CHC, even 

without consideration of the career offender CHC. Thus, the 
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district court clearly found warranted a certain degree of 

sentencing disparity between the codefendants, but mitigated the 

disparity with its departures. 

Thus, we readily conclude that Wilkerson’s sentence is 

both procedurally and substantively reasonable. In accordance 

with Anders, we have reviewed the entire record in this case and 

have found no meritorious issues for appeal. We therefore 

affirm the judgment of the district court and deny counsel’s 

motion to withdraw. This court requires that counsel inform 

Wilkerson, in writing, of the right to petition the Supreme 

Court of the United States for further review. If Wilkerson

requests that a petition be filed, but counsel believes that 

such a petition would be frivolous, then counsel may renew her 

motion for leave to withdraw from representation. Counsel’s 

motion must state that a copy thereof was served on Wilkerson.

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

AFFIRMED