United States v. Larry Smith ( 2022 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4102
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY WILSON SMITH, a/k/a Ocho,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:18-cr-00452-WO-1)
Submitted: May 23, 2022 Decided: July 20, 2022
Before DIAZ and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North Carolina,
for Appellant. Michael A. DeFranco, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Larry Wilson Smith pled guilty, pursuant to a written plea agreement, to being a
felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The
district court imposed a sentencing enhancement under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), after concluding, over Smith’s objection, that Smith had three
prior convictions for violent felonies that were “committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1). The court sentenced Smith to the ACCA’s statutory
minimum of 180 months’ imprisonment. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious grounds
for appeal but questioning the validity of Smith’s guilty plea and whether Smith’s sentence
was properly enhanced under the ACCA. Smith filed a pro se supplemental brief. * The
Government elected not to file a brief.
Smith’s counsel filed a motion to place this case in abeyance pending the Supreme
Court’s decision in Wooden v. United States, 142 S. Ct. 1063 (2022), which we granted.
In a Fed. R. App. P. 28(j) letter, counsel notes the issuance of Wooden, asserts that the fifth
factor of the test in United States v. Letterlough, 63 F.3d 332, 335-36 (4th Cir. 1995), is
similar to the analysis the Supreme Court rejected in Wooden, and requests that we remand
to allow the district court to apply Wooden in the first instance. Finding no error, we affirm.
Smith raises additional arguments challenging whether his sentence was properly
*
enhanced under the ACCA. These claims are meritless.
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Our review of the plea hearing shows that the proceeding was conducted
substantially in compliance with Fed. R. Crim. P. 11 and that the minor omission did not
affect Smith’s substantial rights. See United States v. Lockhart, 947 F.3d 187, 191 (4th
Cir. 2020) (noting that when defendant does not seek to withdraw his guilty plea or
otherwise preserve any allegation of Rule 11 error, review is for plain error). Moreover,
Smith knowingly and voluntarily pled guilty to his offense, and his plea was supported by
a sufficient factual basis. See United States v. Moody, 2 F.4th 180, 196-97 (4th Cir. 2021)
(stating elements of § 922(g) offense). We therefore affirm Smith’s conviction.
We review de novo the district court’s determination that Smith committed his
predicate offenses on different occasions, “[b]ut we review for clear error the district
court’s factual findings made incident to this ultimate ruling.” United States v. Linney, 819
F.3d 747, 751 (4th Cir. 2016). Under the ACCA, a defendant is subject to a mandatory
minimum 15-year term of imprisonment if he “has three previous convictions . . . for a
violent felony or a serious drug offense, or both, committed on occasions different from
one another.” 18 U.S.C. § 924(e)(1). We have identified several factors for district courts
to consider in determining if offenses were committed on different occasions:
(1) whether the offenses arose in different geographic locations; (2) whether
the nature of each offense was substantively different; (3) whether each
offense involved different victims; (4) whether each offense involved
different criminal objectives; and (5) whether the defendant had the
opportunity after committing the first-in-time offense to make a conscious
and knowing decision to engage in the next-in-time offense.
Linney, 819 F.3d at 751 (internal quotation marks omitted); see Letterlough, 63 F.3d at
335-37.
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In Wooden, the Supreme Court addressed what qualifies as “occasions different
from one another” for purposes of the ACCA. 142 S. Ct. at 1067, 1069. The Court
explained:
[A] range of circumstances may be relevant to identifying episodes of
criminal activity. Timing of course matters, though not in the split-second,
elements-based way the Government proposes. Offenses committed close in
time, in an uninterrupted course of conduct, will often count as part of one
occasion; not so offenses separated by substantial gaps in time or significant
intervening events. Proximity of location is also important; the further away
crimes take place, the less likely they are components of the same criminal
event. And the character and relationship of the offenses may make a
difference: The more similar or intertwined the conduct giving rise to the
offenses—the more, for example, they share a common scheme or purpose—
the more apt they are to compose one occasion.
Id. at 1071. The Court further explained that “a single factor—especially of time or place—
can decisively differentiate occasions. Courts, for instance, have nearly always treated
offenses as occurring on separate occasions if a person committed them a day or more
apart . . . .” Id.
Counsel asserts that the analysis the Supreme Court rejected in Wooden was similar
to the fifth factor of the Letterlough test and that Smith’s four prior North Carolina
convictions for robbery with a dangerous weapon were part of a single crime spree and
should not count as four different predicates. Although the analysis that the Supreme Court
rejected in Wooden—whether “crimes take place . . . sequentially rather than
simultaneously”—was similar to the fifth factor of the Letterlough test, 142 S. Ct. at 1068,
the Sixth Circuit’s analysis focused exclusively on timing in determining whether offenses
were committed on different occasions, id. at 1067-71. In Wooden, however, the Supreme
Court identified timing as one of several factors relevant to the analysis. Id. at 1070-71.
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Because timing remains a relevant factor in determining whether offenses were committed
on different occasions, the Supreme Court did not reject the last Letterlough factor in
Wooden. Our review of the record supports the district court’s conclusion. The
indictments showed that the offenses were committed on different dates over a two-week
period and involved different victims. Further, the time gap between the offenses, even if
limited, provided a sufficient break between the offenses to qualify as separate occasions.
Therefore, we conclude that the district court did not err in finding that the predicate
offenses occurred on different occasions. See United States v. Burns-Johnson, 864 F.3d
313, 317-20 (4th Cir. 2017) (holding that North Carolina offense of robbery with a
dangerous weapon qualifies as a violent felony under the ACCA).
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s amended
judgment. This court requires that counsel inform Smith, in writing, of the right to petition
the Supreme Court of the United States for further review. If Smith 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 Smith.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED
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