UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 96-4246
HAROLD DEAN ENGLISH, a/k/a Harold
Brown, Jr., a/k/a Bug,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-95-68)

Argued: October 30, 1997

Decided: March 9, 1999

Before WIDENER, ERVIN, and WILKINS, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished opinion. Judge Ervin wrote the
opinion of the court. Judge Widener wrote an opinion concurring in
the judgment. Judge Wilkins wrote an opinion concurring in the judg-
ment.

_________________________________________________________________

COUNSEL

ARGUED: Lee Ann Anderson McCall, Washington, D.C., for
Appellant. Jane Barrett Taylor, Assistant United States Attorney,
Columbia, South Carolina, for Appellee. ON BRIEF: J. Rene Josey,
United States Attorney, Columbia, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

This case presents a question of first impression in this circuit:
under what circumstances, if any, is a felony conviction that resulted
in sentencing under a "youthful offender" statute an "adult convic-
tion" for purposes of career offender classification under the United
States Sentencing Guidelines ("U.S.S.G." or"Guidelines")? The dis-
trict court found Harold English, the defendant in this case, to be a
career offender under the Guidelines and thus sentenced him under
criminal history category VI. One of the adult convictions necessary
to support the career offender classification was a conviction under
South Carolina's Youthful Offender statute when English was 17
years old. We find that English's conviction was not, under the cir-
cumstances in this case, an adult conviction and thus vacate his sen-
tence and remand for resentencing in accordance with this opinion.

I.

Harold Dean English pleaded guilty to possession with intent to
distribute and distribution of crack cocaine. The pre-sentence investi-
gation report ("PSR") attributed to English at least 3.2 kilograms of
crack cocaine and assigned him a base offense level of 40, with a
three-level adjustment for acceptance of responsibility, leaving him
with a total offense level of 37, and assessed English's criminal his-
tory category at V. However, because he had what the PSR deemed
to be two prior adult convictions for violent felonies or substance
abuse offenses, he was sentenced without objection as a career
offender, which automatically placed him in criminal history category
VI.

At sentencing, the district court adopted the findings of the PSR,
with the exception of assigning English a total offense level of 29,
which comprised a base offense level of 32 with a three-level reduc-

                    2
tion for acceptance of responsibility. The district court departed from
the PSR with the agreement of the United States attorney and English,
both of whom agreed that such a categorization was more in line with
what the parties envisioned during the plea negotiations. The district
court therefore sentenced him at level 29, criminal history category
VI. As such, he received a sentence of 151 months, the possible range
having been 151-188 months.

One of the convictions supporting English's categorization as a
career offender was a state conviction for assault and battery with
intent to kill imposed under the South Carolina Youthful Offender
Act. S.C. Code Ann. § 24-19-10 et seq. (Law. Co-Op 1989).1 English
was 17 when he committed that offense. He was sentenced to an
indefinite term in prison not to exceed six years, but his sentence was
suspended to three years of probation, which he served satisfactorily.
Without this offense, English lacks the two prior offenses necessary
to sentence him as a career offender.2

English now appeals his sentence, claiming that the district court
committed plain error in sentencing him as a career offender, and that
his attorney was ineffective for failing to object on that basis. In the
event he is found not to be a career offender, he also challenges the
accuracy of the PSR's assessment of his criminal history at category
V.

II.

The district court had jurisdiction over this case under 18 U.S.C.
_________________________________________________________________
1 The South Carolina Youthful Offender Act was amended in 1993,
1995, and 1996; for the sake of clarity this opinion refers to the Act as
it existed at the time of the contested conviction. The definition of youth-
ful offender has been altered to exclude those offenders who have com-
mitted violent crimes, which would include assault and battery with
attempt to kill. S.C. Code Ann. § 24-19-10(d) (Law. Co-Op 1997); id. at
§ 16-3-620.
2 English does not contest that he has one conviction -- his October
1991 conviction for assault and battery with intent to kill, illegal posses-
sion of a pistol, and possession with intent to distribute cocaine -- that
could properly serve as a predicate for career offender status.

                    3
§ 3231 (1994). The court entered a final order on March 7, 1996, and
this timely appeal followed. We have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a)(2).

III.

The crux of English's argument is that he was improperly classified
as a career offender under the Guidelines. English failed to object
contemporaneously to his sentencing; thus, we review the district
court's decision for plain error. United States v. Grubb, 11 F.3d 426
(4th Cir. 1993).

A.

In order for a defendant to be classified as a career offender, 1) he
must be at least 18 years old at the time of the instant offense; 2) the
instant offense must be a crime of violence or a controlled substance
offense; and 3) he must have at least two prior felony convictions of
either a crime of violence or a controlled substance offense. U.S.S.G.
§ 4B1.1 (Nov. 1994). The latter criterion is implicated in this case.

The Guidelines provide that a "`prior felony conviction' means a
prior adult federal or state conviction for an offense punishable by
death or imprisonment for a term exceeding one year, regardless of
whether such offense is specifically designated as a felony and
regardless of the actual sentence imposed." U.S.S.G. § 4B1.2 app.
note 3.3 Under the Guidelines, a conviction for an offense committed
prior to age 18 is an adult conviction for career offender classification
purposes if it is classified as an adult conviction under the laws of the
jurisdiction where the defendant was convicted. Id. The career
offender provision of the Guidelines further provides that one is to
apply the definitions and instructions set forth in the criminal history
provision, section [4A1.2], to the counting of convictions to deter-
mine career offender status. U.S.S.G. § 4B1.2 app. note 4.
_________________________________________________________________

3 The commentary to the Guidelines is binding on the courts insofar as
it does not contradict the Guidelines' textual meaning. Stinson v. United
States, 508 U.S. 36, 38 (1993).

                     4
These multiple layers of interpretation require careful attention. A
prior offense under the terms of the career offender provision is an
adult conviction that is punishable by more than one year in prison,
regardless of the actual sentence imposed. Id. at app. note 3 (emphasis
added). In this case, the initial question is whether English's convic-
tion in South Carolina and sentencing as a "youthful offender" was an
adult conviction for purposes of the Guidelines.

The Guidelines direct that we look first to South Carolina law to
determine whether South Carolina law classified the conviction as an
adult conviction. English was 17 when he was convicted in the Court
of General Sessions of assault and battery with intent to kill. He thus
qualified as a "youthful offender" under South Carolina law, which
defined a youthful offender as at least 17 but under 25 at the time of
conviction. S.C. Code Ann. § 24-19-10(d) (Law. Co-op. 1989). The
youthful offender law excluded those convictions that were punish-
able by less than one year of imprisonment or by life imprisonment
or death. S.C. Code Ann. § 24-19-10(f).

South Carolina law did not classify youthful offender convictions
as either adult or juvenile; the Youthful Offender Act gave trial
judges the discretion to treat youthful offenders as either juveniles or
as adults, depending on the circumstances of the case. Id. at § 24-19-
50; Craft v. State, 330 S.E.2d 330, 331 (S.C. 1984). As directed by
the Guidelines, we therefore must look to the interpretive provisions
of the criminal history portion of the Guidelines, section [4A1.2], in
order to determine whether the disputed conviction was adult or juve-
nile. U.S.S.G. § 4B1.2 app. note 4.

Under the criminal history provision of the Guidelines, an offense
committed by those under age 18 should be counted as an adult sen-
tence only if it results in a "sentence[ ] of imprisonment" exceeding
one year and one month. U.S.S.G. § 4A1.2 app. note 7. If a portion
of the sentence is suspended, "sentence of imprisonment" refers only
to the portion that was not suspended. U.S.S.G.§ 4A1.2(b)(2).
English was sentenced to an indefinite period in custody, not to
exceed six years, which period was suspended to three years proba-
tion. He therefore served no time in prison for the youthful offender
conviction.

                    5
The Eleventh Circuit addressed this precise issue in United States
v. Pinion, 4 F.3d 941 (11th Cir. 1993). In Pinion, which also inter-
preted the South Carolina Youthful Offender Act, the court deter-
mined that South Carolina did not technically classify the defendant's
convictions as either adult or juvenile. That omission required further
analysis of the nature of the proceedings, the sentences received, and
the actual time served, in accordance with the direction of Guidelines
section [4A1.2], app. note 7. Id. at 944 & n.6. In Pinion, the defendant
was convicted in the Court of General Sessions, an adult court; he
received indeterminate sentences not to exceed six years for his vari-
ous crimes; and he was actually confined for 27 months. Id. at 944.
The court found these factors demonstrated that South Carolina had
proceeded against Pinion as an adult. Id. at 945. Cf. United States v.
Quinn, 18 F.3d 1461, 1467 (9th Cir. 1994) (holding that prior convic-
tion of 16 year-old is "adult" conviction if maximum sentence
imposed exceeded one year and one month, regardless of indetermi-
nacy of period of imprisonment); United States v. Carrillo, 991 F.2d
590 (9th Cir. 1993)(holding that "adult sentences" are those imposed
for "adult convictions," regardless of whether the term of incarcera-
tion is served in a youth facility or an adult correctional institution).

In this case, the Pinion analysis leads to a different result. English
was convicted in the Court of General Sessions. He was given a sen-
tence of six years, which was suspended to three years of probation.
Thus, under the analysis dictated by the Guidelines, and used by the
Eleventh Circuit in Pinion, English's entire"sentence of imprison-
ment" was suspended and did not result in any sentence of imprison-
ment, let alone one exceeding one year and one month. U.S.S.G.
§ 4A1.2(b)(2). English served no time in prison for the offense.
English's conviction for assault and battery with intent to kill, there-
fore, does not count as an "adult" conviction for career offender pur-
poses. English was improperly sentenced as a career offender.

Such a result does not run counter to the Ninth Circuit's approach
in Carrillo and Quinn. In both of those cases, the offenders were sen-
tenced to time in prison, and there is no evidence that the sentence
was suspended in either case.

The Seventh Circuit has, however, reached the opposite conclusion
in a similar case. In United States v. Coleman , the court found two

                     6
prior convictions at age 17 to be predicate offenses for career offender
status, notwithstanding the fact that each resulted in sentences of pro-
bation. 38 F.3d 856, 860-61 (7th Cir. 1994). Relying on the language
in Guideline section [4B1.2] that counts for career offender purposes
an adult conviction punishable by a sentence of more than one year,
regardless of the actual sentence imposed, the court found the two
convictions plainly satisfied the Guidelines' criteria. Id. The court
stated that section [4B1.2(3)] specifically contemplates that all such
convictions should count, and notes that section[4A1.2] contains no
indication that only some offenses committed prior to age 18 should
be counted for career offender purposes. Id. at 861.

The Coleman court ignored any distinction the Guidelines have
drawn between convictions that clearly occurred when the defendant
was an adult and those committed when the defendant was under 18.
Section [4B1.2] requires a court to count, for career offender pur-
poses, an adult conviction that is punishable for more than one year
and one day, regardless of the actual sentence imposed; it does not,
however, define adult conviction as one that is punishable for more
than one year and one day.

Moreover, if one were to follow the dictates of the Coleman court,
an offense committed under the age of 18 that resulted in a sentence
of probation could be used as a predicate offense for career offender
status, but the same sentence would warrant the imposition of only
one point, rather than three, for criminal history purposes. U.S.S.G.
§ 4A1.2(d) (imposing three points for adult convictions for which
defendant received a sentence of imprisonment exceeding one year
and one month but only one point for those resulting in confinement
for fewer than 60 days). Such an anomalous result makes the Pinion
court's interpretation more reasonable and consistent with the overall
Guidelines scheme.

The district court's miscalculation warrants resentencing even
under a "clear error" standard. As required by United States v. Olano,
an error was committed, the error was plain, and the error affected
English's substantial rights. 507 U.S. 725, 732-36 (1993). The error
was plain because it was "clear under current law." United States v.
Ford, 88 F.3d 1350, 1356 (4th Cir. 1996), cert. denied, 117 S.Ct. 496
(1996). Sentencing a defendant to a period of incarceration in excess

                    7
of the time he should otherwise serve affects his substantial rights.
Ford, 88 F.3d at 1356 (error clearly affected substantial rights when
it caused the defendant to be sentenced at a more severe guidelines
range).

"If all three [Olano] conditions are met, we may then exercise our
discretion to notice the forfeited error, but even then only if the error
`seriously affects the fairness, integrity, or public reputation of judi-
cial proceedings.'" United States v. Williams , 152 F.3d 294, 300 (4th
Cir. 1998) (quoting Johnson v. United States, 520 U.S. 461, 467
(1997)). We choose to exercise our discretion in this case because the
error affected the fairness and integrity of the proceedings against
English by labeling him a "career offender" though his record did not
support such a conclusion.

B.

English's second contention is that, should we find the district
court erred in classifying him as a career offender, we should remand
with instructions to the district court that he properly falls within
criminal history category III, rather than category V as calculated in
the PSR. For the reasons that follow, we do not accept English's argu-
ment.

English argues that the PSR incorrectly assigned three criminal his-
tory points to each of two prior offenses that were actually part of the
same course of conduct as the instant offense. On the basis of those
points, the probation officer concluded that English would have a
criminal history category of V if he were not treated as a career
offender.

English is correct that prior convictions cannot be used both to
increase a defendant's criminal history points and to enhance the base
offense level as "relevant conduct." Ford , 88 F.3d at 1350. The Sen-
tencing Guidelines were amended specifically to avoid such double
counting. U.S.S.G. app. C amend. 493 (1993). Therefore, criminal
history points may be added only for a prior sentence of imprison-
ment previously imposed "for conduct not part of the instant offense."
U.S.S.G. § 4A1.2(1). Conduct that is part of the instant offense means

                     8
conduct that is relevant conduct to the instant offense under the provi-
sions of section [1B1.3]. U.S.S.G. § 4A1.2 app. note 1.

English was convicted and sentenced in South Carolina in October
of 1991 for assault and battery with intent to kill, illegal possession
of a pistol, and possession with intent to distribute cocaine. In March,
1991, he was convicted and sentenced for the transporting of proceeds
from illegal activity in Florida. English contends that the PSR relies
on conduct underlying those offenses as relevant conduct in determin-
ing his base offense level.

English's argument fails for two reasons. First, the district court did
not adopt the PSR wholesale, as English would have this court
believe. Rather, the district court adopted the PSR except for its cal-
culation of offense level. The district court assigned English a base
offense level of 32, with three points off for acceptance of responsi-
bility, to end at a 29, rather than a base offense level of 40 as calcu-
lated in the PSR. Base level 32 requires that a defendant be
responsible for at least 50 grams of cocaine base; the PSR makes clear
that English was responsible for at least that much cocaine post-1991.
J.A. at 82-83. Therefore, none of the relevant conduct underlying the
1991 convictions was needed to support English's sentencing at a
base level of 32. Second, the PSR's recitation of relevant conduct did
not clearly rely on conduct underlying the disputed 1991 convictions.
Indeed, the PSR quotes several witnesses who saw English with either
cocaine or cocaine base in circumstances distinct from those sur-
rounding the 1991 convictions. J.A. at 82-83.

C.

English's claim of ineffective assistance of counsel is mooted by
our holding in his favor on the career offender claim.

IV.

We vacate English's sentence and remand this case to the district
court for English to be resentenced at offense level 29, criminal his-
tory category V.

VACATED AND REMANDED

                    9
WIDENER, Circuit Judge, concurring in the judgment:

In order for the defendant to be classified as a career offender he
must have at least two prior felony convictions of either a crime of
violence or a controlled substance offense. U.S.S.G.§ 4B1.1. The
Guidelines state that a "`prior felony conviction' means a prior adult
federal or state conviction for an offense punishable by death or
imprisonment for a term exceeding one year, regardless of whether
such offense is specifically designated as a felony and regardless of
the actual sentence imposed." U.S.S.G. § 4B1.2 app. note 3. The
Guidelines provide that a conviction for an offense committed prior
to age 18 qualifies as an adult conviction if the laws of the jurisdiction
where the defendant was convicted classify it as an adult conviction.
U.S.S.G. § 4B1.2 app. note 3. The career offender provision further
provides that the definitions and instructions in the criminal history
provisions of § 4A1.2 are applicable to the counting of convictions to
determine career offender status. U.S.S.G. § 4B1.2 app. note 4.

The Guidelines direct that we examine South Carolina law to deter-
mine whether English's conviction and sentencing as a "youthful
offender" qualify as an adult conviction for the purposes of career
offender classification. U.S.S.G. § 4B1.2 app. note 3. The Eleventh
Circuit addressed this exact issue in United States v. Pinion, 4 F.3d
941 (11th Cir. 1993), a case involving essentially the same facts as
we have before us. The court stated that South Carolina did not tech-
nically classify the defendant's conviction as either adult or juvenile.
See Pinion, 4 F.3d at 944 n.6. Because South Carolina law is unclear
as to whether a youthful offender conviction of a 17 year-old is an
adult conviction, we next examine the criminal history provisions of
the Guidelines to determine whether English's conviction can be
counted for career offender classification. U.S.S.G.§ 4B1.2 app. note
4.

U.S.S.G. § 4A1.2 app. note 7 provides: "[F]or offenses committed
prior to age eighteen, only those that resulted in adult sentences of
imprisonment exceeding one year and one month, or resulted in impo-
sition of an adult or juvenile sentence or release from confinement on
that sentence within five years of the defendant's commencement of
the instant offense are counted." Further, if a portion of the defen-
dant's sentence is suspended, then the phrase "sentence of imprison-

                     10
ment" in § 4A1.2(d)(1) refers only to the portion of the sentence that
was not suspended. U.S.S.G. § 4A1.2(b)(2).

Here, the Court of General Session of South Carolina sentenced
English to an indefinite period in custody, not to exceed six years.
This period of custody was suspended with three years probation.
Regardless of whether we consider the youthful offender conviction
itself to be adult or juvenile, this conviction should not be counted for
career offender purposes because English did not receive any sen-
tence of imprisonment or otherwise qualifying him as a career
offender. U.S.S.G. § 4A1.2(d).

WILKINS, Circuit Judge, concurring in judgment:

I agree with the conclusion that English should not have been sen-
tenced as a career offender. I write separately, however, because my
reasoning in reaching this conclusion differs from that of Judge Ervin.
Judge Ervin states that the issue presented for our review is whether
English's conviction in 1986, when English was 17, for assault and
battery with the intent to kill was an adult conviction under South
Carolina law. In my view, it is unnecessary to resolve this question
because even if the 1986 conviction were an adult conviction, the dis-
trict court should not have counted it for purposes of applying the
career offender guideline.

Pursuant to U.S. Sentencing Guidelines Manual § 4B1.1 (1994):

          A defendant is a career offender if (1) the defendant was at
          least eighteen years old at the time of the instant offense, (2)
          the instant offense of conviction is a felony that is either a
          crime of violence or a controlled substance offense, and (3)
          the defendant has at least two prior felony convictions of
          either a crime of violence or a controlled substance offense.

The parties do not dispute that English satisfied the first two require-
ments. And, the presentence report identified two predicate convic-
tions satisfying the third element--a 1986 conviction for assault and
battery with the intent to kill and a 1991 conviction for assault and
battery of a high and aggravated nature. Although English concedes

                     11
that the 1991 conviction should be counted for purposes of applying
the career offender provision, he asserts that the district court erred
in counting the 1986 conviction.

Two provisions in the commentary to U.S.S.G. § 4B1.2 (which
defines the terms used in § 4B1.1) are relevant to the determination
of whether English's 1986 conviction should be counted for purposes
of applying the career offender guideline. First, application note 3
defines the term "prior felony conviction." See U.S.S.G. § 4B1.2,
comment. (n.3). As relevant here, application note 3 explains that "[a]
conviction for an offense committed prior to age 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. Second,
application note 4 provides that "[t]he provisions of §4A1.2 (Defini-
tions and Instructions for Computing Criminal History) are applicable
to the counting of convictions under §4B1.1." U.S.S.G. § 4B1.2, com-
ment. (n.4).

Here, it is unnecessary to determine whether English's 1986 con-
viction was an adult conviction under South Carolina law because
even if it were, application of § 4A1.2 precluded the district court
from counting the conviction for purposes of determining whether
English was a career offender. See United States v. Bacon, 94 F.3d
158, 161 (4th Cir. 1996) (noting that "[w]hether a prior conviction
must be counted under § 4B1.1 is determined by reference to
§ 4A1.2"). Commentary to § 4A1.2 provides, in pertinent part, that
convictions for offenses committed before the age of 18 are counted
for criminal history purposes only if they "resulted in adult sentences
of imprisonment exceeding one year and one month, or resulted in
imposition of an adult or juvenile sentence or release from confine-
ment on that sentence within five years of the defendant's commence-
ment of the instant offense." U.S.S.G. § 4A1.2, comment. (n.7).
Because English's 1986 conviction fits none of these criteria, it
should not be counted for purposes of applying the career offender
guideline. See United States v. Carrillo, 991 F.2d 590, 592 (9th Cir.
1993) (explaining that determination of whether an adult conviction
for an offense committed prior to age 18 counts for purposes of apply-
ing the career offender guideline depends upon application of

                    12
§ 4A1.2); see also United States v. Coleman, 38 F.3d 856, 861 & n.3
(7th Cir. 1994) (same).* Accordingly, I concur in the judgment.
_________________________________________________________________
*In its discussion of Coleman, Judge Ervin appears to indicate that a
conviction for an offense committed before the age of 18 counts for pur-
poses of applying the career offender guideline only if the offense
resulted in a sentence of imprisonment exceeding one year and one
month--i.e., if the defendant would be awarded three criminal history
points under § 4A1.2(d)(1). See Carrillo , 991 F.2d at 592. Of course, this
discussion is dicta, since English would not have been awarded any crim-
inal history points for the 1986 conviction under§ 4A1.2(d). Were the
issue before us, however, I would conclude that any offense committed
prior to the age of 18 for which at least one criminal history point would
be awarded under § 4A1.2(d)--and that otherwise satisfies the require-
ments of §§ 4B1.1 and 4B1.2--should be counted for purposes of apply-
ing the career offender guideline. See Coleman , 38 F.3d at 861.

                  13
