                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0214n.06
                             Filed: March 28, 2006

                                                 05-5116

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
        Plaintiff-Appellee,                           )
                                                      )
v.                                                    )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR THE
GARY ALLEN BLANTON,                                   )    EASTERN DISTRICT OF KENTUCKY
                                                      )
        Defendant-Appellant.                          )




        Before: DAUGHTREY and GILMAN, Circuit Judges, and RUSSELL,* District Judge.


        PER CURIAM. The defendant, Gary Allen Blanton, appeals from the imposition of

a 151-month prison sentence following his guilty plea to the charge of bank robbery. He

contends that the district court erred in subjecting him to increased punishment as a career

offender based upon two prior felony convictions for burglary. At the sentencing hearing,

however, the defendant expressly conceded that the crimes used to enhance his sentence

were “crimes of violence.” As a result, we hold that this issue has been waived, and we

affirm the district court’s sentencing order.




        *
        The Hon. Thomas B. Russell, United States District Judge for the Western District of Kentucky, sitting
by designation.
05-5116
United States v. Blanton

       The defendant pleaded guilty to a single-count indictment charging him with taking

approximately $13,000 by force, violence, and intimidation from a federally insured bank.

As part of a plea agreement, the defendant and the government stipulated that the proper

base offense level for the crime of conviction under the appropriate sentencing guideline

was 20. The plea agreement, however, explicitly provided that “[n]o agreement exists

about the Defendant’s criminal history category pursuant to U.S.S.G. Chapter 4.”

Furthermore, although the defendant explicitly waived his right to appeal the conviction or

the sentence or to attack the guilty plea collaterally, the government conceded in open

court that any issue concerning Blanton’s potential career-offender status “would be an

issue that would be appropriate to not include in the waiver.”


       In preparing its pre-sentence report for the district court, the probation office noted

that Blanton had previously been convicted of burglaries of dwellings in January 1989 in

Kentucky, and May 1991 in Virginia. Because those convictions were for “crimes of

violence,” as that term is defined in § 4B1.2 of the 2003 United States Sentencing

Guidelines Manual, the report recommended that the defendant be sentenced as a career

offender. See U.S. SENTENCING GUIDELINES MANUAL § 4B1.1(b) (2003). As a result, instead

of a sentence of 63-78 months as an offense level 20, criminal history category V offender,

Blanton was subject to a sentence of 151-188 months as an offense level 29, criminal

history category VI offender.




                                            -2-
05-5116
United States v. Blanton

       At the sentencing hearing, the district judge concurred with the probation office’s

assessment and ruled that the two burglary convictions were in fact “crimes of violence.”

See U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a)(2) (2003). Furthermore, the court ruled

that even though the Kentucky conviction was imposed more than 15 years before the

commission of the February 2004 bank robbery, that earlier conviction could still be used

to support a career-offender designation because the defendant’s parole status following

his release had been revoked and he had actually served additional prison time within the

15-year period immediately preceding the commission of the bank robbery. See U.S.

SENTENCING GUIDELINES MANUAL § 4A1.2(e)(1) (2003).      Having reached those conclusions,

the district judge sentenced Blanton as a career offender to the minimum 151-month

sentence provided by the applicable guideline range.


       In his appellate brief, the defendant raises only a single issue – whether the district

court properly considered the 1991 Virginia conviction to be a “crime of violence” for

purposes of determining the proper sentencing range under the guidelines. During the

sentencing hearing, however, the defendant’s attorney challenged only whether the 1989

Kentucky conviction was within the time frame applicable to the career-offender

determination. Indeed, defense counsel at sentencing specifically conceded that both of

Blanton’s prior burglary convictions “would otherwise qualify as crimes of violence for

purposes of the guidelines.”




                                            -3-
05-5116
United States v. Blanton

       In United States v. Sloman, 909 F.2d 176, 182 (6th Cir. 1990), we noted that “[a]n

attorney cannot agree in open court with a judge’s proposed course of conduct and then

charge the court with error in following that course.” Blanton has thus waived any objection

he might have to the district judge’s determination that the Virginia burglary conviction

should be considered, for guidelines purposes, a prior conviction for a “crime of violence.”


       The judgment of the district court is AFFIRMED.




                                           -4-
