UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4776

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID J. CULLEN,

Defendant - Appellant.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Martinsburg. Gina M. Groh, Chief 

District Judge. (3:14-cr-00020-GMG-RWT-1)

Submitted: April 22, 2015 Decided: April 28, 2015

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

J. Mark Sutton, SUTTON & JANELLE, PLLC, Martinsburg, West 

Virginia, for Appellant. William J. Ihlenfeld, II, United 

States Attorney, Anna Krasinski, Assistant United States 

Attorney, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

David J. Cullen appeals the 151-month sentence imposed by 

the district court after he pled guilty to aiding and abetting 

the distribution of heroin, in violation of 18 U.S.C. § 2 (2012) 

and 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012). On appeal, Cullen

contends that the district court erred by applying the career 

offender enhancement of U.S. Sentencing Guidelines Manual

§ 4B1.1 (2013), and that his sentence is substantively 

unreasonable. We affirm.

Because Cullen did not object to his career offender status 

in the district court, we review this issue for plain error. 

United States v. Price, 777 F.3d 700, 711 (4th Cir. 2015)

(discussing standard). A defendant qualifies as a career 

offender if, as relevant here, he had two prior felony 

convictions for a crime of violence or a controlled substance 

offense. USSG § 4B1.1(a). Cullen argues that one of the

convictions on which the district court relied does not qualify 

as a predicate offense for purposes of § 4B1.1(a). He claims, 

pursuant to § 4A1.2(d), that his age at the time he was 

convicted, coupled with the conviction’s staleness, prevents 

reliance on the conviction as a predicate for career offender 

purposes. We disagree. 

To qualify as a predicate conviction under § 4B1.1(a), a 

conviction must be counted separately under § 4A1.1(a)-(c). 
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USSG § 4B1.2(c) & n.3; United States v. Mason, 284 F.3d 555, 558 

(4th Cir. 2002). Section 4A1.2(d) restricts the prior 

convictions that may be counted for purposes of § 4A1.1(a)-(c), 

based on the defendant’s age at the time he committed the 

predicate offense. See USSG § 4A1.2(d). We conclude that the 

prior conviction was appropriately counted under § 4A1.1(a). 

Cullen concedes that he was convicted as an adult, and his 

sentence of imprisonment—which included the term of imprisonment 

he served following the revocation of his probation for the 

underlying conviction, USSG § 4A1.2(k)(1)—exceeded one year and 

one month and fell within the relevant time period. USSG 

§ 4A1.2(d)(1), (k)(2)(A). Therefore, Cullen has not shown that 

the district court erred, much less plainly erred, by counting 

the challenged conviction as a predicate for career offender 

purposes. 

Next, Cullen claims that the district court failed to 

appropriately weigh the 18 U.S.C. § 3553(a) (2012) factors in 

light of his background and the circumstances of his offense. 

We review a sentence for reasonableness, applying “a deferential 

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 

38, 41 (2007); United States v. Lymas, 781 F.3d 106, 111 (4th 

Cir. 2015). Having found no procedural error, see Lymas, 781

F.3d at 111, “we proceed to ‘assess the substantive 

reasonableness of the sentence imposed,’” id. at 112 (quoting 
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Gall, 552 U.S. at 51), under “the totality of the 

circumstances,” Gall, 552 U.S. at 51. “[A] sentence within a 

properly calculated advisory Guidelines range is presumptively 

reasonable” on appeal. United States v. Dowell, 771 F.3d 162, 

176 (4th Cir. 2014) (internal quotation marks omitted). “A 

defendant can only rebut the presumption by demonstrating that 

the sentence is unreasonable when measured against the § 3553(a)

factors.” Id. (internal alteration and quotation marks 

omitted). 

Here, the record shows that the district court listened to 

Cullen’s arguments, balanced Cullen’s background and the 

circumstances of his offense with his rehabilitation efforts, 

and concluded that a sentence at the bottom of the Guidelines 

range satisfied the sentencing objectives in § 3553(a). Cullen 

has failed to rebut on appeal the presumption of reasonableness 

accorded his within-Guidelines sentence. Thus, the district 

court did not abuse its discretion in sentencing Cullen.

Accordingly, we 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