Filed: Oct. 05, 2007
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4605 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JERRY PARKER FUTRELL, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (7:04-cr-00055-D) Submitted: September 7, 2007 Decided: October 5, 2007 Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part; dismissed in par
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4605 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JERRY PARKER FUTRELL, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (7:04-cr-00055-D) Submitted: September 7, 2007 Decided: October 5, 2007 Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part; dismissed in part..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4605
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERRY PARKER FUTRELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (7:04-cr-00055-D)
Submitted: September 7, 2007 Decided: October 5, 2007
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Banumathi Rangarajan, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Parker Futrell pled guilty to possession with
intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2000), and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2000). Futrell appeals his
sentence, arguing the district court erred in sentencing him as an
armed career criminal, in enhancing his sentence in violation of
the Sixth Amendment, and in granting a downward departure less than
what he and the Government requested. We affirm in part and
dismiss in part.
Futrell’s base offense level for the grouped offenses was
20, pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 3D1.2(c) (2004). He received a four-level increase for use of a
firearm in connection with another felony offense under USSG
§ 2K2.1(b)(6) and a two-level increase for obstruction of justice
based on his failure to appear under USSG § 3C1.1. Because of his
obstruction of justice and positive test for use of
methamphetamines, the court denied Futrell an adjustment for
acceptance of responsibility. Because Futrell was determined to be
an armed career criminal under 18 U.S.C. § 924(e)(1) (2000), his
total offense level was 34. His advisory guidelines range was
calculated as 262 to 327 months imprisonment; however, because the
statutory maximum was twenty years’ imprisonment, the advisory
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guidelines range was decreased to 240 months. 21 U.S.C.
§ 841(b)(1)(C) (2000).
The Government moved for a § 5K1.1 reduction of Futrell’s
sentence for substantial assistance. Futrell argued for a
reduction to 71 months’ imprisonment, and the Government argued for
a thirty-five percent reduction from the 240 month guidelines
range. The district court sentenced Futrell to 228 months of
imprisonment.
Futrell first argues the district court erred in
sentencing him as an armed career criminal. Futrell does not
dispute the fact of the prior convictions used as predicate
offenses in classifying him as an armed career criminal, but argues
three of the prior convictions constituted only one offense. In
considering whether the district court properly designated Futrell
as an armed career criminal, this court reviews the district
court’s legal determinations de novo and its factual findings for
clear error. United States v. Wardrick, 350 F.3d 446, 451 (4th
Cir. 2003).
A person who violates § 922(g)(1) and has three prior
convictions for violent felonies or serious drug offenses
“committed on occasions different from one another” is an armed
career criminal subject to enhanced penalties. 18 U.S.C.
§ 924(e)(1) (2000). In analyzing whether convictions are from
separate and distinct criminal episodes, we consider, among other
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things, whether the time between the crimes underlying the
convictions allowed the defendant sufficient time “to make a
conscious and knowing decision to engage in another drug sale.”
United States v. Letterlough, 63 F.3d 332, 337 (4th Cir. 1995).
Separate acts of distribution that occur on different days or even
at different times on the same day constitute separate criminal
episodes. See
id. at 334-37; see also United States v. Samuels,
970 F.2d 1312, 1315 (4th Cir. 1992).
Futrell was classified an armed career criminal under
§ 924(e) based on his prior North Carolina convictions for
conspiracy to traffic cocaine in January 1988, in Duplin County;
conspiracy to traffic cocaine on March 28, 1988, in Columbus
County; and conspiracy to sell and deliver cocaine from April 10 to
April 17, 1988, in New Hanover County; and his federal conviction
for possession with intent to distribute 260 grams of marijuana in
1991. He argues the three North Carolina convictions constitute
one criminal episode. However, as Futrell concedes, the offenses
occurred in three different counties in North Carolina. Further,
the intervals between the offenses allowed Futrell ample time to
make conscious and knowing decisions to engage in the subsequent
criminal acts. We find the district court did not err in
determining Futrell’s prior convictions were separate offenses,
each countable as a predicate offense for purposes of classifying
him an armed career criminal under § 924(e).
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Futrell’s argument that the district court erred in
sentencing him as an armed career criminal based on facts not
alleged in the indictment or found by a jury is foreclosed by
United States v. Thompson, 421 F.3d 278, 282-83 (4th Cir. 2005),
cert. denied,
126 S. Ct. 1463 (2006), in which we held that
sentencing courts may rely on prior convictions to invoke the
enhancement provided by § 924(e)(1), even if the prior convictions
were not charged in the indictment or found by a jury, so long as
no facts extraneous to the fact of conviction need be decided.
Next, Futrell challenges the district court’s enhancements to
his sentence for use of a firearm in connection with another felony
and obstruction of justice, arguing the facts on which they were
based were not admitted by him or found beyond a reasonable doubt.
As the Government points out in its brief, it is undisputed that
these claims are barred by the waiver of appellate rights contained
in Futrell’s plea agreement. See United States v. Blick, 408 F.3d
162, 168-69 (4th Cir. 2005)
Finally, Futrell seeks to contest the extent of the
district court’s downward departure based on his substantial
assistance. We lack jurisdiction to review a defendant’s challenge
to the extent of a downward departure. See United States v. Hill,
70 F.3d 321, 324 (4th Cir. 1995). Therefore, we dismiss as to this
claim.
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Accordingly, we affirm Futrell’s sentence and dismiss his
claim seeking review of the extent of the downward departure
imposed by the district court. 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 IN PART;
DISMISSED IN PART
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