United States v. Gillikin , 422 F. App'x 288 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4873
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT L. GILLIKIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-01340-PMD-1)
Submitted: March 23, 2011 Decided: April 11, 2011
Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Cameron J. Blazer, Assistant Federal Public Defender,
Charleston, South Carolina, for Appellant. Robert Nicholas
Bianchi, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert L. Gillikin pled guilty to possession of a
firearm after a felony conviction, in violation of 18 U.S.C.
§ 922(g)(1) (2006), and possession of stolen firearms, in
violation of 18 U.S.C. § 922(j) (2006). The district court
sentenced Gillikin as an armed career criminal to a 235-month
term of imprisonment. Gillikin’s attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal but questioning
the adequacy of the Fed. R. Crim. P. 11 hearing and the district
court’s designation of Gillikin as an armed career criminal.
Gillikin was informed of his right to file a pro se supplemental
brief, but he did not do so. We affirm.
Counsel challenges the adequacy of the Rule 11
hearing, but she points to no specific error. Because Gillikin
did not move in the district court to withdraw his guilty plea,
our review is for plain error. United States v. Martinez, 277
F.3d 517, 525 (4th Cir. 2002). To establish plain error,
Gillikin “must show: (1) an error was made; (2) the error is
plain; and (3) the error affects substantial rights.” United
States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009).
Although the district court did not discuss
specifically that it must consider the 18 U.S.C. § 3553(a)
(2006) factors in fashioning a sentence, as required by Fed. R.
2
Crim. P. 11(b)(1)(M), we conclude that this omission did not
affect Gillikin’s substantial rights. See Massenburg, 564 F.3d
at 343 (providing standard). Moreover, the district court
otherwise complied with Rule 11 in accepting Gillikin’s guilty
plea and ensured that the plea was knowing and voluntary and
supported by a sufficient factual basis. United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
Counsel also questions whether the district court
properly determined that Gillikin had three predicate
convictions for violent felonies qualifying Gillikin as an armed
career criminal under 18 U.S.C. § 924(e) (2006). Because
Gillikin did not object at sentencing to his classification as
an armed career criminal, our review is for plain error. See
Massenburg, 564 F.3d at 342-43. In the sentencing context,
Gillikin must demonstrate “that he would have received a lower
sentence had the error not occurred.” United States v.
Hargrove, 625 F.3d 170, 184-85 (4th Cir. 2010) (internal
quotation marks omitted).
Our review of the record leads us to conclude that,
applying a modified categorical approach, see Taylor v. United
States, 495 U.S. 575, 602 (1990), Gillikin had three qualifying
predicate convictions for violent felonies, as defined by
§ 924(e)(2)(B). Specifically, Gillikin was convicted in 1993 of
burglarizing two different residences several days apart, and
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these convictions constitute two separate predicate offenses for
purposes of § 924(e). See United States v. Thompson, 421 F.3d
278, 285 (4th Cir. 2005) (holding that “the term ‘occasion’
under [§ 924(e)] necessarily includes burglaries . . . , which
were committed on distinct days in separate towns in different
homes”). Gillikin also was convicted in 1989 of burglary of a
residence. Although the presentence report did not indicate the
source the probation officer relied to conclude that the
conviction was a violent felony, see Shepard v. United States,
544 U.S. 13, 20-21 (2005) (discussing documents courts may
consider), the district court “was entitled to rely upon the
[presentence report] because it bears the earmarks of derivation
from Shepard-approved sources such as the indictments and state-
court judgments from his prior convictions, and, moreover,
[Gillikin] never raised the slightest objection either to the
propriety of its source material or to its accuracy.” Thompson,
421 F.3d at 285. Thus, the district court properly sentenced
Gillikin as an armed career criminal. *
*
We note that the presentence report indicated Gillikin had
a prior conviction for breaking and entering into a residence in
North Carolina, which also qualified as a predicate violent
felony conviction. See United States v. Thompson, 588 F.3d 197,
202 (4th Cir. 2009), cert. denied, 130 S. Ct. 1916 (2010);
Thompson, 421 F.3d at 283-84 (same).
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We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Gillikin, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Gillikin requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Gillikin. 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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