United States v. Fletcher ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4939
BENNIE FLETCHER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-97-5)
Submitted: July 28, 1998
Decided: August 10, 1998
Before HAMILTON and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Scott A. Curnutte, Elkins, West Virginia, for Appellant. William D.
Wilmoth, United States Attorney, Zelda E. Wesley, Assistant United
States Attorney, Clarksburg, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Bennie Fletcher ("Fletcher") pled guilty to possession of
a firearm by a convicted felon in violation of 18 U.S.C.A. § 922(g)(1)
(West Supp. 1998) ("§ 922(g)"). Pursuant to 18 U.S.C.A. § 924(e)
(West 1994 & Supp. 1998) ("§ 924(e)"), the district court sentenced
Fletcher to 180 months' imprisonment and sixty months of supervised
release. Because we find no error in this sentence, we affirm.
Fletcher first contends that the court erred in using his 1974 Cali-
fornia conviction for voluntary manslaughter as a predicate offense in
sentencing him under § 924(e). Second, Fletcher contends that the
court erred in considering two aggravated assault convictions as sepa-
rate predicate offenses under § 924(e). We disagree with both argu-
ments.
With regard to Fletcher's first argument, whether an offense quali-
fies as a predicate offense under § 924(e) is a question of law we
review de novo.1 In so doing, we also note that § 924(e) mandates a
sentence of not less than fifteen years for a person who has violated
§ 922(g) and has three prior convictions for a"violent felony" or a
"serious drug offense." A violent felony under the statute is "any
crime punishable by imprisonment for a term exceeding one year . . .
that . . . has as an element the use, attempted use, or threatened use
of physical force against the person of another; or . . . involves con-
duct that presents a serious potential risk of physical injury to another."2
Fletcher argues that his 1974 voluntary manslaughter conviction
was not a "violent felony" because it was not a "crime punishable by
imprisonment for a term exceeding one year." This is so, Fletcher
contends, because "he retained his civil rights as a result of the man-
ner in which his case was resolved in California."3 In support of this
contention, Fletcher cites 18 U.S.C. § 921(a)(20), which expressly
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1 See United States v. Morrell, 61 F.3d 279, 280 (4th Cir. 1995).
2 18 U.S.C.A. § 924(e)(2)(B) (West 1994 & Supp. 1998).
3 Appellant's Br. at 2.
2
excludes from the category of "crime[s] punishable by imprisonment
for a term exceeding one year" any "conviction which has been
expunged, or set aside or for which a person has been pardoned or has
had his civil rights restored."4 Fletcher asserts his civil rights were
restored automatically as a result of what he contends was a stay of
judgment in his 1974 trial for voluntary manslaughter in California.
However, the record discloses that Fletcher was not granted a stay
of judgment in that prosecution. Rather, the California court stayed
the execution of Fletcher's sentence.5 Fletcher would, by his own
admission,6 then be required to petition the California court to have
his rights restored with regard to that conviction. 7 Such action would
not have been necessary had the court stayed its judgment.8
The court found that Fletcher presented no evidence that he sought
restoration of his civil rights in California, and Fletcher does not dis-
pute that finding.9 Therefore, we find no error in the district court's
conclusion that the offense was properly used as a predicate offense
under § 924(e).
We are also unpersuaded by Fletcher's argument that the district
court erred in treating two incidents of aggravated assault as separate
predicate offenses for the purposes of § 924(e). Fletcher's only
ground for so arguing is that "the aggravated assaults were substan-
tively identical, the victims were related . . . the second offense . . .
rose directly from the first . . . [and] the sentencing court . . .
[c]onsolidated the cases and treated them identically."10 We review
such an issue de novo.11
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4 18 U.S.C.A. § 921(a)(20) (West Supp. 1998).
5 J.A. at 82 (sealed).
6 Appellant's Br. at 5.
7 See id. at 4 (citing Stephens v. Toomey, 338 P.2d 182 (Cal. 1959)).
We agree with Fletcher that Toomey controls here because we look to the
law of the convicting state to determine whether civil rights have been
restored subsequent to a state conviction. See United States v. King, 119
F.3d 290, 293 (4th Cir. 1997) (citation omitted).
8 Appellant's Br. at 4.
9 Id. at 5.
10 Id. at 7.
11 See United States v. Letterlough, 63 F.3d 332, 334 (4th Cir. 1995).
3
We find that the aggravated assaults were indeed two separate
offenses: one occurred on August 13, 1976, and the other on August
31, 1976. Although the assaults may have arisen out of the same run-
ning dispute, they were clearly "`separate and distinct criminal
episode[s].'"12 Therefore, we find that the court properly considered
the two assaults separate predicate offenses and decline to disturb its
sentence on this ground.
Based on the foregoing, we affirm the district court's sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court, and argu-
ment would not aid the decisional process.
AFFIRMED
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12 United States v. Letterlough , 63 F.3d 332, 335 (4th Cir. 1995) (quot-
ing United States v. Hudspeth, 42 F.3d 1015, 1019 (7th Cir. 1994) (en
banc) (emphasis omitted).
4