United States v. Smith , 86 F. App'x 640 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4698
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIE JAMES SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-107)
Submitted: January 29, 2004 Decided: February 9, 2004
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Angela Hewlett Miller, Office of the United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Willie James Smith pled guilty to possession of a firearm
by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was
sentenced as an armed career criminal to a term of 217 months
imprisonment. See 18 U.S.C.A. § 924(e) (West 2000 & Supp. 2003);
U.S. Sentencing Guidelines Manual § 4B1.4 (2002). Smith's attorney
has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), raising as a potentially meritorious issue whether Smith
was correctly sentenced as an armed career criminal, but asserting
that in his view there are no meritorious issues for appeal. Smith
has been informed of his right to file a pro se supplemental brief.
He has not filed a brief, but has moved to dismiss his appointed
attorney and lists in his motion several issues he believes have
merit. Smith’s attorney has moved to withdraw. We deny Smith’s
motion to dismiss his attorney and the attorney’s motion to
withdraw. We affirm the conviction and sentence.
A defendant who violates § 922(g) is subject to a
sentence within a mandatory range of fifteen years to life if,
before his violation of § 922(g), he received “three previous
convictions . . . for a violent felony or serious drug offense, or
both, committed on occasions different from one another.” 18
U.S.C.A. § 924(e)(1). A “violent felony” is defined in
§ 924(e)(2)(B) as “any crime punishable by imprisonment for a term
exceeding one year . . . that . . . has as an element the use,
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attempted use, or threatened use of physical force against the
person of another . . . .” Smith had prior convictions for a
felony common law robbery committed on October 3, 1993, two counts
of felony second degree kidnapping and felony robbery with a
dangerous weapon committed on July 17, 1994, and a felony second
degree murder committed on August 28, 1994. The 1994 offenses were
consolidated for sentencing.
At his sentencing hearing, Smith’s attorney conceded that
his client was eligible for sentencing under § 924(e). Because of
Smith’s status as an armed career criminal, and because at the time
of his arrest Smith possessed marijuana packaged for sale, his
offense level and criminal history category were adjusted upward
pursuant to USSG § 4B1.4(b)(3)(A). The resulting guideline range
was 188-235 months. Smith informed the court that he had not
committed the July 17, 1994, kidnappings and armed robberies, but
had pled guilty to those offenses as part of a plea bargain in the
felony murder. He acknowledged that, because these convictions had
not been vacated, reversed, or set aside, the court was required to
sentence him under § 924(e).
In the Anders brief, appellate counsel challenges the
armed career criminal sentence. We find no error in the sentence.
Offenses consolidated for sentencing may be predicate offenses for
a § 924(e) sentence if they were committed on different occasions,
as they were here. United States v. Letterlough, 63 F.3d 332, 335
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(4th Cir. 1995) (offenses must have arisen from separate and
distinct criminal episodes); United States v. Samuels, 970 F.2d
1312, 1315 (4th Cir. 1992) (neither § 924(e) nor the guidelines
require that predicate offenses be tried or sentenced separately).
In his motion for new counsel, Smith claims error in that he was
not served with an information pursuant to 21 U.S.C. § 851 (2000).
However, such an information is required only when the defendant
receives a sentence for a federal drug offense that is statutorily
increased based on prior drug convictions; it was not necessary in
Smith’s case.
Pursuant to Anders, this court has reviewed the record
for reversible error and found none. We therefore affirm the
conviction and sentence. We deny Smith’s motion to dismiss his
attorney and counsel’s motion to withdraw. 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 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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