                                        UNPUBLISHED

                           UNITED STATES COURT OF APPEALS
                               FOR THE FOURTH CIRCUIT


                                          No. 16-4544


UNITED STATES OF AMERICA,

                        Plaintiff - Appellee,

                v.

VINCENT COLLINS,

                        Defendant - Appellant.

------------------------------

OFFICE OF THE FEDERAL PUBLIC DEFENDER, EASTERN DISTRICT OF
NORTH CAROLINA; OFFICE OF THE FEDERAL PUBLIC DEFENDER,
MIDDLE DISTRICT OF NORTH CAROLINA; OFFICE OF THE FEDERAL
PUBLIC DEFENDER, WESTERN DISTRICT OF NORTH CAROLINA,

               Amici Supporting Appellant.


Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, Senior District Judge. (8:15-cr-00316-DKC-1)


Submitted: March 23, 2018                                       Decided: May 2, 2018


Before GREGORY, Chief Judge, KEENAN, and FLOYD, Circuit Judges.


Vacated and remanded by unpublished opinion. Chief Judge Gregory wrote the opinion,
in which Judge Keenan and Judge Floyd joined.
Erek L. Barron, WHITEFORD, TAYLOR & PRESTON, LLP, Bethesda, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Bethany
Lipman, Special Assistant United States Attorney, Joseph Baldwin, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee. Anthony Martinez, Federal Public Defender, Joshua B.
Carpenter, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Asheville, North Carolina, for Amici Curiae.


Unpublished opinions are not binding precedent in this circuit.




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GREGORY, Chief Judge:

       This matter was calendared for December 2017, but scheduling conflicts delayed

oral argument. In the interim, this Court heard argument in United States v. McCollum,

885 F.3d 300 (4th Cir. 2018), which involved one of the same issues presented in this

case. To preserve judicial resources, we held this case in abeyance pending the Court’s

decision in McCollum. The Court has issued its decision in McCollum and this matter is

now ripe for consideration. Oral argument will not aid the resolution of this matter, so

we decide this appeal on the briefs. For the reasons stated below, we vacate the lower

court decision and remand this case for resentencing.

       In January 2016, Collins pleaded guilty to (1) conspiracy to distribute and to

possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(b)(1)(B), 846

and (2) possession of a firearm in furtherance of a drug trafficking crime in violation of

18 U.S.C. § 924(c)(1)(A)(i). Collins’ Amended Pre-sentence Report (“PSR”) identified

him as a career offender based on two predicate offenses: a 1997 conviction for unlawful

distribution of cocaine and a 2005 conviction for conspiracy to commit violent crimes in

aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5).

       Based on Collins’ offense level and criminal history category, his guideline

imprisonment range would have been 188–235 months. J.A. 203. However, because

Collins was designated a career offender and was also convicted of violating § 924(c), his

guideline range increased to 262–327 months. Id. The district court sentenced Collins to

160 months because it found that Collins’ career offender status overstated the

seriousness of his criminal history.
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       On appeal Collins argues that the district court erred by (1) relying on the facts

stated in the PSR and (2) designating Collins as a career offender under the United States

Sentencing Guidelines. We address each argument in turn.

       First, Collins argues that the district court improperly relied on the PSR because

the Government did not sufficiently prove the facts of the convictions contained within

the report. We disagree.

       “We review a district court’s legal conclusions at sentencing de novo and its

factual findings for clear error.” United States v. McDowell, 745 F.3d 115, 120 (4th Cir.

2014). “[W]e afford considerable deference to a district court’s determinations regarding

the reliability of information in a PSR.” Id. “The defendant has an affirmative duty to

make a showing that the information in the presentence report is unreliable, and articulate

the reasons why the facts contained therein are untrue or inaccurate.” United States v.

Terry, 916 F.2d 157, 162 (4th Cir. 1990) (emphasis added). “We will not disturb a

court’s determination regarding the reliability of a PSR unless we are ‘left with the

definite and firm conviction that a mistake has been committed.’” McDowell, 745 F.3d at

120 (quoting United States v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008)). “Without an

affirmative showing [that] the information is inaccurate, the court is free to adopt the

findings of the presentence report without more specific inquiry or explanation.” Terry,

916 F.2d at 162 (internal citations, quotations, and alterations omitted).

       In this case, Collins’ argument begins and ends with the naked assertion that the

district court should not have relied on the PSR. Collins does not articulate any specific

reason why a particular fact contained in the PSR is unreliable or untrue. Our precedent
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makes clear that Collins’ “mere objection to the finding in the presentence report is not

sufficient.” Terry, 916 F.2d at 162. Accordingly, Collins does not make the necessary

showing that the PSR is inaccurate, and the district court did not err by adopting the facts

within the PSR without further inquiry.

       Second, Collins argues that his designation as a career offender is improper

because one of his prior felony convictions does not qualify as a crime of violence under

the United States Sentencing Guidelines. We agree.

       “A defendant is a career offender if (1) the defendant was at least eighteen years

old at the time the defendant committed the instant offense of conviction; (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.” U.S. Sentencing Guidelines

Manual § 4B1.1 (U.S. Sentencing Comm’n 2015) (emphasis added).

       The PSR designated Collins a career offender because of two prior felony

convictions involving a controlled substance offense or a crime of violence: his 1997

conviction for unlawful distribution of cocaine, and his 2005 conviction for conspiracy to

commit violent crimes in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5).

Collins argues that the latter is not a crime of violence. Our recent decision in McCollum

makes clear that “§ 1959(a)(5) is not categorically a crime of violence[.]” 885 F.3d at

303. Therefore, Collins’ § 1959(a)(5) conviction cannot qualify as a crime of violence

and without it, Collins lacks the requisite number of predicate convictions to qualify as a

career offender.
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       Though the district court departed from a guideline sentence after finding that

Collins’ career offender enhancement resulted in too high a range, it is unclear how the

improper career-offender designation affected Collins’ sentence. Accordingly we vacate

Collins’ sentence and remand this case back to the district court for resentencing.



                                                            VACATED AND REMANDED




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