                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4096


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BILLY DEAN TESSENEER,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:11-cr-00029-MR-1)


Submitted:   September 24, 2013           Decided:   October 2, 2013


Before WILKINSON, MOTZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dianne K. Jones McVay, JONES MCVAY LAW FIRM, PLLC, Charlotte,
North Carolina, for Appellant.     Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Billy     Dean        Tesseneer            pled    guilty,     pursuant          to    a

written plea agreement, to possession with intent to distribute

methamphetamine, in violation of 21 U.S.C.A. § 841(a)(1) (West

2006 & Supp. 2013).               He was designated a career offender and

sentenced to 220 months’ imprisonment, a term towards the top of

his advisory Guidelines range.                  Tesseneer timely appealed.

            Counsel        has     filed       a       brief   pursuant         to   Anders       v.

California, 386 U.S. 738 (1967), certifying that there are no

nonfrivolous     grounds          for    appeal,         but   questioning           Tesseneer’s

career     offender        designation          and      the    reasonableness             of     his

within-Guidelines sentence.                 In his pro se supplemental brief,

Tesseneer challenges the calculation of his advisory Guidelines

range, including enhancements to his offense level and the drug

quantity     attributed          to     him,       asserts      claims      of       ineffective

assistance of counsel, and states that he did not see the final

presentence report (“PSR”) until the day of sentencing.                                    For the

reasons that follow, we affirm.

            We   review          Tesseneer’s            sentence    for     reasonableness,

applying    an   abuse       of       discretion         standard.         Gall       v.    United

States,    552   U.S.       38,    46,     51      (2007).         This    review      requires

consideration         of      both        the          procedural         and        substantive

reasonableness of the sentence.                         Id. at 51.         We first assess

whether    the   district         court     properly           calculated        the   advisory

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Guidelines range, considered the factors set forth in 18 U.S.C.

§    3553(a)    (2006),     analyzed    any      arguments    presented      by    the

parties, and sufficiently explained the selected sentence.                         Id.

at 49–51; United States v. Lynn, 592 F.3d 572, 575–76 (4th Cir.

2010).    If the sentence is free of significant procedural error,

we    review     the    substantive     reasonableness        of    the    sentence,

“examin[ing] the totality of the circumstances to see whether

the sentencing court abused its discretion in concluding that

the   sentence     it    chose    satisfied      the   standards    set    forth    in

§ 3553(a).”       United States v. Mendoza–Mendoza, 597 F.3d 212, 216

(4th Cir. 2010).            If the sentence is within the defendant’s

properly calculated Guidelines range, we apply a presumption of

substantive reasonableness.             United States v. Bynum, 604 F.3d

161, 168-69 (4th Cir. 2010); see Rita v. United States, 551 U.S.

38,      347     (2007)      (permitting          appellate       presumption       of

reasonableness for within-Guidelines sentence).

               Defense counsel questions whether the district court

erred    by    relying    on     Tesseneer’s      1992   state     conviction      for

possession of marijuana with intent to sell and deliver as a

predicate offense for career offender designation.                        To qualify

as a career offender, a defendant must have “at least two prior

felony convictions of either a crime of violence or a controlled

substance       offense.”        USSG   §       4B1.1(a).     A     “prior    felony

conviction” is “a prior adult federal or state conviction for an

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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.”    USSG § 4B1.2 cmt. n.1.

            Here,   there   is    no    question   that   the   offense    was

punishable by more than a year in prison, because Tesseneer was

sentenced to five years of imprisonment, although the active

sentence was initially suspended and he ultimately only served

eleven months of imprisonment.              Furthermore, it is undisputed

that the conviction was for a controlled substance offense.                See

USSG § 4B1.2(b) (defining “controlled substance offense”).

            Counsel’s   basis     for   questioning   whether    Tesseneer’s

1992 felony conviction for possession with intent to sell and

deliver marijuana supports the career offender designation is

two-fold:     (1) it did not occur within fifteen years of his

instant offense and (2) Tesseneer was only incarcerated for a

total of eleven months.           Despite its relative age, the 1992

marijuana    conviction     was    properly    counted.     Section       4A1.2

governs whether prior felony convictions are counted under USSG

§ 4B1.1 as predicate offenses for career offender designation.

USSG § 4B1.2 cmt. n.3.            A prior conviction is included as a

predicate offense for purposes of career offender designation if

the “prior sentence of imprisonment exceed[ed] one year and one

month, whenever imposed, [and] resulted in the defendant being

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incarcerated during any part of” the fifteen years preceding the

commencement of his instant offense.                        USSG § 4A1.2(e)(1).            A

sentence     of   imprisonment        does       not    include    the     portion    of   a

sentence that was suspended.             USSG § 4A1.2(b)(2).

              Tesseneer’s          five-year       prison     term       for    his   1992

conviction was initially suspended.                     Thus, it would not qualify

as a “sentence of imprisonment” for purposes of career offender

designation.         However, when Tesseneer’s probation was revoked,

he received an active sentence of five years’ imprisonment * and

was incarcerated until February 1994.                        Given that the instant

offense conduct occurred fourteen years and eleven months later,

in    January     2009,      Tesseneer       was       incarcerated      for    his   1992

conviction during the applicable fifteen-year look-back period.

See United States v. Hackley, 662 F.3d 671, 686 (4th Cir. 2011)

(“[A]lthough ordinarily a prior conviction only counts toward a

defendant’s criminal history if the sentence on the conviction

was       ‘imposed        within     fifteen       years      of     the       defendant’s

commencement         of    the     instant       offense,’     convictions         imposed

earlier are also counted if the sentence exceeded one year and




      *
       Even though Tesseneer ultimately served only eleven months
of his active five-year sentence, his “sentence of imprisonment”
is based on the pronounced sentence rather than the length of
time he served. Cf. USSG § 4A1.2 cmt. n. 2.



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one   month    and    ‘resulted       in   the       defendant       being    incarcerated

during any part of such fifteen-year period.’” (quoting USSG

§ 4A1.2(e))), cert. denied, 132 S. Ct. 2703 (2012); see also

United States v. Romary, 246 F.3d 339, 343-44 (4th Cir. 2001)

(holding that “[p]ostrevocation penalties are attributed to the

original conviction”).           Accordingly, we discern no error, plain

or otherwise, in the court’s use of the 1992 conviction as a

predicate offense for purposes of career criminal designation.

              We have thoroughly reviewed the record and conclude

that Tesseneer’s sentence is both procedurally and substantively

reasonable.          Our    review    disclosed        no        error   in   the   district

court’s computation of Tesseneer’s Guidelines range, including

the career offender designation, the opportunities it provided

Tesseneer     and     his    counsel       to       speak    in     mitigation,     or   its

explanation of the sentence imposed by reference to the relevant

§ 3553(a)      factors.          In     addition            to     noting     its   overall

consideration of the relevant sentencing factors, the district

court opined that the 220-month sentence was appropriate given

the seriousness of Tesseneer’s offense; Tesseneer’s recidivism

and demonstrated lack of respect for the law; and the need to

impose a just punishment that would protect the public and deter

future criminality.            Finally, we have found no basis in the

record to overcome the presumption of reasonableness accorded

this within-Guidelines sentence.

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            We have reviewed the issues raised in Tesseneer’s pro

se supplemental brief and find them to be without merit.                                  In

accordance with Anders, we have reviewed the record in this case

and have found no meritorious issues for appeal.                           We therefore

affirm the judgment of the district court.                       This court requires

that   counsel    inform      Tesseneer,          in    writing,    of    the    right    to

petition    the   Supreme       Court    of       the   United    States    for   further

review.     If Tesseneer 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 Tesseneer.           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




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