                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-4022


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

EVAN FOREMAN,

                Defendant – Appellant.



                             No. 13-4028


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

MICHAEL FOREMAN,

                Defendant – Appellant.



Appeals from the United States District Court for the District
of Maryland, at Baltimore.     James K. Bredar, District Judge.
(1:11-cr-00398-JKB-3; 1:11-cr-00398-JKB-1)


Argued:   January 29, 2014                 Decided:   March 12, 2014


Before MOTZ, KING, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Motz and Judge King joined.


ARGUED: Amy Lee Copeland, ROUSE & COPELAND, LLC, Savannah,
Georgia; Michael Scotland Morris, SIMMS SHOWERS, LLP, Baltimore,
Maryland, for Appellants.     Benjamin M. Block, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.    ON
BRIEF: Rod J. Rosenstein, United States Attorney, Michael C.
Hanlon, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
DIAZ, Circuit Judge:

       Evan and Michael Foreman pleaded guilty to conspiracy to

commit       Hobbs     Act    robbery.              Evan    also     pleaded      guilty     to

possession of a firearm in furtherance of a crime of violence.

The district court sentenced Evan to 294 months’ imprisonment

and Michael to 144 months’ imprisonment.                           On appeal, they argue

that       the    district     court       erred       in       failing    to    compel     the

government        to   move    for    an   additional            one-level      reduction    in

their       respective        offense      levels          in    recognition       of     their

acceptance        of   responsibility           under       U.S.   Sentencing      Guideline

§ 3E1.1(b).          Michael contends separately that the district court

erred      in    sentencing     him   as    a    career         offender   under    U.S.S.G.

§ 4B1.1.         For the reasons that follow, we affirm.



                                                I.

       On August 3, 2011, a grand jury returned a fifteen-count

indictment against Evan and Michael, charging them with multiple

Hobbs Act robberies, conspiracy to commit Hobbs Act robbery, and

bank larceny. 1        The indictment also charged Evan with possessing

and brandishing a firearm in furtherance of a crime of violence.

The district court set a trial date of October 17, 2011.


       1
       Evan was originally charged by criminal complaint on June
20, 2011, and he made his initial appearance the same day.



                                                3
       The Foremans’ initial plea negotiations with the government

proved unfruitful.         Over the course of the next year, a grand

jury returned second and third superseding indictments against

them, adding seven new counts and charging them with numerous

additional     robberies.          In   the       meantime,        the    trial       date    was

pushed   back     to   September        10,       2012.      On    May      15,     2012,     the

district court conducted a pretrial hearing on the Foremans’

numerous evidentiary and procedural motions.                            Trial was delayed

a third time and set for November 26, 2012.

       On May 30, 2012, Michael signed a written plea agreement

with   the   government,      wherein          he       agreed    to     plead      guilty     to

conspiracy     to   commit    Hobbs      Act        robbery,      in     violation      of     18

U.S.C.   § 1951(a).         Evan    signed          a    written       plea       agreement    on

August   24,    2012,     agreeing      to     plead       guilty      to     conspiracy       to

commit    Hobbs     Act    robbery       and       to     possessing          a    firearm     in

furtherance of a crime of violence, in violation of 18 U.S.C.

§ 924(c).      Their respective plea hearings were held on July 2,

2012, and September 12, 2012.

       A presentence investigation report (“PSR”) was subsequently

prepared for each defendant.              The PSRs noted that each defendant

had an adjusted offense level of 30, reflecting, among other

things, a two-level reduction for acceptance of responsibility




                                              4
under U.S.S.G. § 3E1.1(a) (2012). 2                 According to the PSRs, the

Foremans   were   also    both    career      offenders,        so     they    each   had

criminal   history      categories      of    VI.         The   resultant      advisory

Guidelines    range     for    both   Michael       and    Evan   was    168     to   210

months’    imprisonment.         Evan     faced      an    additional         mandatory,

consecutive 84-month sentence for his firearm offense under 18

U.S.C. § 924(c).

     The district court conducted a joint sentencing hearing.

Both Michael and Evan objected to not receiving an additional

one-point reduction for their acceptance of responsibility under

U.S.S.G. § 3E1.1(b).          They also both objected to being sentenced

as career offenders.          The court overruled both objections as to

each defendant.

     The     district     court       adopted       the     PSR’s      findings       and

recommendations       with      respect       to     Evan       with     only     minor

modification.     After considering each of the 18 U.S.C. § 3553(a)

factors, the court sentenced Evan at the top of the Guidelines

range, to 210 months for his conspiracy conviction and 84 months


     2
       We apply the 2012 version of the Guidelines, which was in
effect at the time of the Foremans’ sentencing.       See United
States v. Lewis, 606 F.3d 193, 198-99 (4th Cir. 2010); see also
U.S.S.G. § 1B1.11(a) (“The court shall use the Guidelines Manual
in effect on the date that the defendant is sentenced.”).    The
2013 version of the Guidelines Manual amends the commentary
associated with U.S.S.G. § 3E1.1 but does not alter the text of
that provision.



                                          5
for   the     firearm           offense,      for        a     total     of      294     months’

imprisonment.           The court noted that “even if the guidelines were

to compute in such a way as to cause [Evan] to not be considered

a   career    offender,         and    therefore         the    guideline        range      to   be

substantially lower . . . I would nonetheless impose . . . a

total sentence[] of 294 months” under the § 3553(a) factors.

J.A. 451.

      With    respect       to     Michael,        the       court    accepted        the   PSR’s

findings,         but     determined         that    Michael’s          criminal         history

category overstated his criminal history.                            It therefore adjusted

Michael’s criminal history category to V, resulting in a revised

Guidelines        range    of    151    to    188    months.           It      then    sentenced

Michael      to     the     below-Guidelines             sentence         of     144     months’

imprisonment.              After       thoroughly            addressing        the     § 3553(a)

factors, the court noted that it would sentence Michael to 144

months’ imprisonment even if he were not a career offender.

      The Foremans timely appealed their sentences. 3




      3
       The government has chosen not to enforce the Foremans’
respective appellate waivers. Accordingly, we have no reason to
reconsider our earlier denial of the government’s motion to
dismiss the appeal.



                                               6
                                            II.

      We review criminal sentences for reasonableness.                              Gall v.

United States, 552 U.S. 38, 46 (2007).                          Reasonableness review

requires   us       to   ensure      that   the     district       court   “committed      no

significant     procedural           error,”       such   as   improperly        calculating

the Guidelines range.               Id. at 51.        “In assessing a challenge to

a sentencing court’s application of the Guidelines, we review

the   court’s       factual     findings       for    clear     error      and    its   legal

conclusions de novo.”               United States v. Alvarado Perez, 609 F.3d

609, 612 (4th Cir. 2010) (internal quotation marks omitted).

                                               A.

      Section       3E1.1      of     the   Sentencing         Guidelines         authorizes

certain    offense-level             reductions           if   a     defendant      accepts

responsibility           for   his    criminal       conduct.         Section      3E1.1(a)

authorizes      a    two-level       reduction       “[i]f     the   defendant       clearly

demonstrates acceptance of responsibility for his offense.”                                As

noted above, both Foremans received this reduction.                               They take

issue with the government’s refusal to move for an additional

one-level reduction under § 3E1.1(b), which provides:

      If the defendant qualifies for a decrease under
      subsection (a), the offense level determined prior to
      the operation of subsection (a) is level 16 or
      greater, and upon motion of the government stating
      that the defendant has assisted authorities in the
      investigation or prosecution of his own misconduct by
      timely notifying authorities of his intention to enter
      a plea of guilty, thereby permitting the government to
      avoid   preparing  for   trial   and  permitting   the

                                               7
      government and the court to allocate their resources
      efficiently,   decrease the  offense   level  by   1
      additional level.

      The    § 3E1.1(b)       reduction      should       only    be    granted     by    the

district court upon motion of the government, but a court may

compel the government to file such a motion if it is withheld on

improper grounds.            See United States v. Divens, 650 F.3d 343,

350 (4th Cir. 2011).           Here the district court declined to order

the   government       to    move     for   the    reduction,       finding     that      the

purposes     of   § 3E1.1(b)        were     not    fulfilled       because     “lots     of

resources had to be marshaled” with respect to the Foremans’

case.      J.A. 250.

      We    begin    our     analysis       with    the    commentary        accompanying

§ 3E1.1(b).         See     Stinson    v.    United       States,      508   U.S.   36,    38

(1993) (“[C]ommentary in the Guidelines Manual that interprets

or explains a guideline is authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or a

plainly erroneous reading of, that guideline.”).                         The commentary

states that “the conduct qualifying for a decrease in offense

level under subsection (b) will occur particularly early in the

case.”        U.S.S.G.      § 3E1.1     cmt.       n.6.      We     hardly     think      the

Foremans’ acceptance of responsibility came early in this case,

as Michael pleaded guilty eleven months after he was indicted

and four months before the scheduled trial date.                             Evan waited



                                             8
fourteen months after he was first charged to plead guilty, just

two months before trial. 4

      Despite   this    delay,    the   Foremans      argue   that      they   are

nonetheless entitled to the reduction because they entered early

plea negotiations and “would have pleaded guilty immediately”

had they been able to reach an agreement with the government.

Appellants’ Br. at 16.           But a mere willingness to engage in

negotiations    does     not     definitively        signal      a    defendant’s

readiness to accept responsibility in the manner contemplated by

the   Guideline.       Cf.   Divens,    650   F.3d    at   348       (noting   that

§ 3E1.1(b) is concerned with the “timely entry” of a “plea of

guilty,” which “entails . . . an unqualified confession of guilt

in open court” (internal quotation marks omitted)). 5

      The facts of this case make the distinction clear.                        As

became evident at the sentencing hearing, the Foremans’ plea

negotiations with the government broke down because they were



      4
       Even if we were to use the dates the Foremans signed their
written plea agreements, rather than the dates of their formal
plea hearings, we would still consider the delay too long.
      5
        The government does not, of course, have unlimited
discretion to withhold the motion. See Divens, 650 F.3d at 345-
46. If a defendant were to clearly demonstrate a willingness to
plead guilty to the government’s satisfaction but, through no
fault of the defendant’s, was unable to plead guilty for some
time, the government could not properly withhold a motion for
the reduction simply because the defendant had not yet had a
formal plea hearing.



                                        9
unwilling to admit to the “full scope of the conspiracy as [the

government] understood it.”                J.A. 251.          The § 3E1.1(b) reduction

is     only     appropriate           when        “a     defendant           has        accepted

responsibility in a way that ensures the certainty of his just

punishment      in     a     timely       manner.”            U.S.S.G.        § 3E1.1       cmt.

background.            The     Foremans’          willingness           to     enter        plea

negotiations         may     have     signaled         some     readiness          to     accept

responsibility, but we agree with the district court that the

resulting guilty pleas were not sufficiently “timely” so as to

warrant the additional one-level reduction under § 3E1.1(b).

       In   that     regard,       the    Foremans’      delay     in    entering          their

guilty pleas failed to save the government time or expense.                                  The

government filed successive motions to exclude time under the

Speedy Trial Act in this case, in part because it needed more

time   to     prepare      motions,       interview       witnesses,          review       newly

produced discovery, and otherwise prepare for trial.                                    See J.A.

107, 123-24.         We take the government at its word that, during

the interim between the Foremans’ indictment and their pleas, it

was preparing for what it expected to be a complex, multi-week

trial.      See U.S.S.G. § 3E1.1 cmt. n.6 (“[T]he Government is in

the    best    position       to    determine          whether     the       defendant       has

assisted authorities in a manner that avoids preparing for trial

. . . .”); see also Divens, 650 F.3d at 346 (“[T]he Government

retains       discretion       to        determine       whether        the        defendant’s

                                             10
assistance has relieved it of preparing for trial.”).                         Nor did

the Foremans’ negotiations permit the district court to conserve

resources, as it held a full motions hearing in anticipation of

their trial.      If nothing else, the hearing demonstrates that

significant resources needed to be marshaled in this case in

contravention of the policy goals of § 3E1.1(b).

      Contrary    to    the     Foremans’      assertions,          Divens    is    not

inconsistent with our conclusion that the defendants are not

entitled to the § 3E1.1(b) reduction.                     The question in Divens

was whether the government could withhold a § 3E1.1(b) motion

because    the    defendant      refused       to     sign    a     plea     agreement

containing an appellate waiver, even though he pleaded guilty to

the   charged    offense      without    a    plea    agreement      and     signed   a

statement accepting responsibility.                  See 650 F.3d at 344.             We

held that the government could not withhold the reduction in

that instance, because § 3E1.1(b) is concerned only with the

preservation      of    trial     resources--not             the    “‘expense       and

uncertainty’ attendant to an appeal.”                     Id. at 348.        We noted,

however,   that   the    government       would      be    within    its   rights     to

withhold the reduction if there were a significant delay between

the   defendant’s      indictment       and   plea,       thereby    requiring      the

government to prepare for trial.               See id. at 347 n.2; see also

United States v. Brown, 26 F. App’x 151, 153 (4th Cir. 2001)

(finding that a defendant who entered plea negotiations but did

                                         11
not plead guilty until after jury selection was not entitled to

the § 3E1.1(b) reduction).

       Here, the government prepared for trial during the delay

between the Foremans’ indictment and the entry of their plea

agreements.     The fact that the defendants entered unsuccessful

plea negotiations with the government throughout this period did

not relieve the government of this burden.               Accordingly, we hold

that    the   district      court   correctly     declined      to   compel   the

government to move for a one-level reduction for either Foreman

under § 3E1.1(b).

                                         B.

       Michael Foreman argues separately that the district court

erred when it sentenced him as a career offender pursuant to

U.S.S.G. § 4B1.1.          Under that provision, a defendant’s criminal

history category is automatically VI if, among other things,

“the   defendant     has    at   least   two   prior   felony   convictions    of

either a crime of violence or a controlled substance offense.”

U.S.S.G. § 4B1.1(a).

       Michael argues that the predicate convictions the district

court relied upon to sentence him as a career offender were not

valid because he was not represented by counsel when he pleaded

guilty to those offenses.            To support his contention, Michael

submitted     the     state      court    records      associated     with    his

convictions.        He contends that the records are sufficient to

                                         12
raise an inference that his convictions were constitutionally

infirm,       and    that     such    a   showing   is    sufficient     to    shift    the

burden       of     proof     to   the    government      to   demonstrate     that     the

convictions were, in fact, valid.                   The government responds that

a defendant collaterally challenging a prior state conviction

bears both the burden of production and persuasion, and that

Michael has not carried his burden of persuasion.

       This court has not clearly delineated the burden of proof a

defendant bears when collaterally challenging a prior conviction

for the purpose of contesting a career-offender classification.

However, we do not believe this is the appropriate instance to

do   so,      as    it    would      require   us   to    wade    unnecessarily        into

constitutional waters.               See Ashwander v. Tenn. Valley Auth., 297

U.S. 288, 341 (1936) (Brandeis, J., concurring); see also United

States v. Martinez-Cruz, 736 F.3d 999, 1001-02 (D.C. Cir. 2013)

(recognizing that the question of who bears the burden of proof

when     a        defendant        collaterally     challenges       a    prior       state

conviction raises due process concerns).                         Rather, we summarily

reject Michael’s contention, as we are entitled to do, “because,

even if we ‘assume that an error occurred[, it] is harmless.’”

United       States      v.   Rivera-Santana,       668   F.3d    95,    102   (4th    Cir.

2012) (quoting United States v. Savillon-Matute, 636 F.3d 119,

123 (4th Cir. 2011)).



                                               13
       Although the district court found that Michael was a career

offender, it reduced his criminal history category from VI to V,

lowering his advisory Guidelines range from 168 to 210 months’

imprisonment to 151 to 188 months.                     It then sentenced him below

the Guidelines range, to 144 months’ imprisonment.                             Although

that       sentence      was     higher    than        what   Michael     argued     was

appropriate, 6 we cannot say that the district court abused its

discretion in imposing it.

       The district court carefully went through the 18 U.S.C.

§ 3553(a) factors, identifying the reasons it would impose a

144-month sentence even if Michael was not properly classified

as a career offender.            Among those considerations, it noted that

Michael      had    a    prior       conviction    for    armed     robbery    and   had

demonstrated a “pattern of criminality over a number of years.”

J.A. 478.          It described the seriousness of Michael’s present

offense,      including        the    “horrible    harm”      it   inflicted    on   the

victims.      Id.       The court also discussed the need for a sentence

that would deter the defendant and protect the public.                         In light

of   this     careful      analysis,      we     are    “entitled    to   affirm     the


       6
       Michael argues for the first time on appeal that his
Guidelines range would be 51 to 63 months’ imprisonment, which
is even lower than what he suggested was appropriate at
sentencing--77 to 96 months’ imprisonment.     Even if correct,
that fact does not alter our assessment of the reasonableness of
Michael’s sentence.



                                            14
sentence imposed . . . because any procedural error that may

have been made . . . would necessarily be harmless.”                          Rivera-

Santana, 668 F.3d at 103; see also Savillon-Matute, 636 F.3d at

123   (“[I]t    would    make    no    sense     to   set   aside   [a]     reasonable

sentence and send the case back to the district court since it

has   already     told   us     that   it    would    impose      exactly    the   same

sentence, a sentence we would be compelled to affirm.” (internal

quotation marks omitted)).



                                         III.

      For   the    reasons      given,      we   affirm     the   district    court’s

judgments.

                                                                              AFFIRMED




                                            15
