United States v. Snipes , 179 F. App'x 878 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4660
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BILLY LEE SNIPES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan, Chief
District Judge. (CR-04-49-FL)
Submitted: April 24, 2006 Decided: May 9, 2006
Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for
Appellant. Anne Margaret Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Billy Lee Snipes pled guilty pursuant to a plea agreement
to one count of possession of a firearm by a felon, in violation of
18 U.S.C. §§ 922(g)(1), 924(e) (2000). The district court
determined Snipes was an armed career criminal and sentenced him to
180 months’ imprisonment. We affirm the conviction and sentence.
Snipes first contends that he received ineffective
assistance of counsel. An ineffective assistance of counsel claim
is generally not cognizable on direct appeal, but should instead be
asserted in a post-conviction motion under 28 U.S.C. § 2255 (2000).
See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
However, this court has recognized an exception to the general rule
when “it ‘conclusively appears’ from the record that defense
counsel did not provide effective representation.” Id. (citation
omitted). Because the record does not conclusively establish that
Snipes’ defense counsel provided ineffective assistance, his claim
is not cognizable on appeal.
Next, Snipes contends that the court’s application of the
Armed Career Criminal Act (“ACCA”) violated Apprendi v. New Jersey,
530 U.S. 466 (2000), and Shepard v. United States, 544 U.S. 13(2005), because the predicate offenses were not listed in the
indictment, admitted by him, or found by a jury beyond a reasonable
doubt. When reviewing the district court’s application of the
Sentencing Guidelines, this court reviews the findings of fact for
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clear error and questions of law de novo. United States v. Green,
436 F.3d 449, 456 (4th Cir. 2006). A district court may enhance a
sentence based on the “fact of a prior conviction” regardless of
whether or not it was admitted to by the defendant or found by a
jury. United States v. Thompson, 421 F.3d 278, 282 (4th Cir.
2005), cert. denied, 126 S. Ct. 1463 (2006). Therefore, a district
court may determine if a defendant has been convicted of the
predicate offenses required by the ACCA so long as the facts
necessary to support the enhancement “inhere in the fact of
conviction” rather than being “extraneous to it.” Id. at 283.
Snipes’ prior convictions are offenses covered in the ACCA. 18
U.S.C. § 924(e)(2). Further, the offenses occurred on different
dates, in different geographical locations, and involved different
criminal objectives and victims. See Thompson, 421 F.3d at 284-86;
United States v. Williams, 187 F.3d 429, 431 (4th Cir. 1999).
Therefore, we conclude the district court properly enhanced Snipes’
sentence under the ACCA.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly we affirm Snipes’ conviction and sentence.
This court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
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counsel may move this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on the client. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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