                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4697


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHARLES STEVEN MCDONALD,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:13-cr-00061-F-1)


Submitted:   June 30, 2015                 Decided:   July 14, 2015


Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Charles Steven McDonald appeals his sentence after a jury

conviction for distributing cocaine base.                  On appeal, McDonald

contends his sentence is procedurally unreasonable because one of

his prior North Carolina drug convictions was not punishable by

more than one year in prison and does not qualify as a predicate

felony controlled substance offense for enhancement purposes under

U.S. Sentencing Guidelines Manual § 4B1.1 (2013); and even if he

is a career offender, his sentence at the bottom of his advisory

Guidelines    range   is    substantively       unreasonable    because    it   is

greater than necessary to achieve the goals of sentencing under 18

U.S.C. § 3553(a) (2012).       We affirm.

     We review the reasonableness of a sentence for abuse of

discretion.    United States v. Lymas, 781 F.3d 106, 111 (4th Cir.

2015) (citing Gall v. United States, 552 U.S. 38, 41 (2007)).

First,   we   consider      whether   the       district    court   committed   a

significant procedural error, such as improperly calculating the

advisory Guidelines range.       Gall, 552 U.S. at 51.          If the sentence

is   procedurally       reasonable,        we    consider     whether     it    is

substantively reasonable, taking into account the totality of the

circumstances.    Id.      On appeal, we presume that a sentence within

or below a properly calculated Guidelines range is substantively

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

2012).   The presumption can only be rebutted by showing that the

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sentence is unreasonable when measured against the 18 U.S.C.

§ 3553(a) factors.    United States v. Louthian, 756 F.3d 295, 306

(4th Cir.), cert. denied, 135 S. Ct. 421 (2014).

     In determining whether the Guidelines calculation was proper,

we review the district court’s factual findings for clear error

and its legal conclusions de novo.          United States v. Dodd, 770

F.3d 306, 309 (4th Cir. 2014), cert. denied, 135 S. Ct. 1514 (2015)

(citation and quotation marks omitted).                “Where a Guidelines

application    involves    a   mixed   question   of   law   and   fact,   the

applicable standard turns on the nature of the circumstances at

issue.”     United States v. Adepoju, 756 F.3d 250, 256 (4th Cir.

2014).    “If the application turns on a question of fact, the clear

error standard applies; if it turns on a legal interpretation, de

novo review is appropriate.”           Dodd, 770 F.3d at 309 (citation

omitted).    “A district court’s application turns primarily on fact

where . . . it depend[s] on an evaluation and weighing of the

factual details.”    Id. at 309 n.3 (citation and internal quotation

marks omitted).

     “Generally, we review de novo an issue of law whether a prior

offense qualifies” as a predicate “for purposes of the Guidelines’

career offender enhancement.”          United States v. Carthorne, 726

F.3d 503, 509 (4th Cir. 2013), cert. denied, 134 S. Ct. 1326 (2014)

(citation omitted).       “However, when a defendant has not objected



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to that classification before the district court, we review such

a question for plain error.”        Id. (citations omitted).

     We have reviewed the record and conclude that McDonald’s

sentence is both procedurally and substantively reasonable, and

the district court neither erred nor abused its discretion.                  The

probation officer determined that McDonald was a career offender

based on prior North Carolina convictions in paragraphs 29 and 30

of the presentence report.        The report noted that he was sentenced

to 12 to 15 months in custody for the paragraph 29 conviction.

For the paragraph 30 conviction, the report noted that he was

sentenced to 12 to 15 months in custody, consecutive to another

conviction, suspended, and 36 months of probation.                     Although

McDonald was sentenced on the same day for these convictions, they

were separated by an intervening arrest.

     McDonald’s counsel in the district court filed no objections

to the presentence report and conceded that he was a career

offender. McDonald filed pro se objections claiming that he should

not receive any criminal history points for the paragraph 30

conviction   because   he   was    sentenced   on   the   same   day    as   the

convictions in paragraphs 28 and 29, and he was not a career

offender because he did not have the requisite two prior controlled

substance offenses.    The Government responded to the objection at

sentencing that the offenses were “appropriately scored separately

and considered separate predicate convictions for career offender

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purposes.”    The district court properly overruled the objection.

See USSG § 4A1.2(a)(2).

      McDonald never claimed in the district court that his prior

conviction in paragraph 30 was not punishable by more than one

year in prison.      However, he claims for the first time on appeal

that he “was not exposed to a sentence of a year or more in prison,

but was sentenced to a term of 36 months probation for the

offense.”     Moreover, he claims that the offense was a Class I

felony under North Carolina law that was not punishable by more

than one year in prison.            Thus, while he concedes that his

conviction in paragraph 29 was a predicate for career offender

purposes, he contends that the paragraph 30 conviction was not.

      The Government has responded that McDonald’s argument ignores

that he was also sentenced to 12 to 15 months in custody, suspended

and   consecutive    to   another    sentence,          for    the   paragraph   30

conviction.     In    addition,     to       remove    any    question   that    the

conviction qualifies as a felony, the Government has provided the

state judgments in an addendum to its brief.                  The judgment for the

paragraph 30 conviction shows that it was in fact a Class G felony.

The Government notes the judgments were provided to McDonald’s

former counsel in the district court.                 Former counsel’s response

to McDonald’s pro se letter filed in the district court before

sentencing supports this claim.



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     McDonald   has    moved      to    strike     the   addendum        because   the

judgments “were never introduced by the government in the district

court   or   considered     by     the        district   court      at    McDonald’s

sentencing.”    As the Government notes, McDonald does not contest

that they are copies of public records or that they accurately

reflect his sentences.          McDonald also contends that based on the

evidence before the district court at sentencing, his paragraph 30

conviction did not qualify as a predicate conviction for career

offender purposes.     We disagree.           McDonald never objected that his

prior   conviction    was   a    Class    I    felony    or   was   otherwise      not

punishable by more than one year in prison in the district court;

counsel conceded that he was a career offender; the court properly

denied the objection that he made based on the record; and the

court was permitted to accept the “undisputed portion of the

presentence report as a finding of fact.”                     Fed. R. Crim. P.

32(i)(3)(A); see also United States v. Revels, 455 F.3d 448, 451

n.2 (4th Cir. 2006).        There was no reason for the Government to

offer the judgments into evidence, as there was no objection

calling them into question.            See Fed. R. Crim. P. 32(i)(2).

     “[T]he qualification of a prior conviction [as a sentencing

predicate] does not depend on the sentence [a defendant] actually

received but on the maximum sentence permitted for his offense of

conviction.”    United States v. Bercian-Flores, 786 F.3d 309, 316

(4th Cir. 2015) (citations and internal quotation marks omitted).

                                          6
Thus, the fact that McDonald’s prison sentence was suspended did

not mean that his offense was not punishable by more than one year

in prison.     On the other hand, the fact that he actually received

a custody sentence exceeding one year, albeit suspended, supported

the determination that the prior offense was punishable by more

than one year in prison.

      Nonetheless,    to   remove   any      doubt    created   by   McDonald’s

factual claim made for the first time on appeal that his prior

conviction was a Class I felony that was not punishable by more

than one year in prison, and because the accuracy of the state

judgments included in the addendum to the Government’s brief is

not disputed, we conclude that it is in the interest of justice to

take judicial notice of the judgments.               See Fed. R. Evid. 201;

Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239-40 (4th Cir.

1989).   We therefore deny McDonald’s motion to strike.

      We further conclude that McDonald has failed to rebut our

presumption that his sentence is substantively reasonable.                   The

district court considered his arguments and imposed a sentence at

the   bottom    of   the   Guidelines       range    in   recognition   of   the

significant impact resulting from his designation as a career

offender.    However, the district court reasonably determined that

a significant prison term was appropriate because he had not

responded favorably to prior judicial intervention.



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     Accordingly, we deny McDonald’s motion to strike and 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




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