Filed: Dec. 27, 2010
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4157 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HAROLD RAY DUCKWORTH, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:09-cr-00161-WO-5) Submitted: November 30, 2010 Decided: December 27, 2010 Before DUNCAN, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael E. A
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4157 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HAROLD RAY DUCKWORTH, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:09-cr-00161-WO-5) Submitted: November 30, 2010 Decided: December 27, 2010 Before DUNCAN, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael E. Ar..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4157
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAROLD RAY DUCKWORTH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00161-WO-5)
Submitted: November 30, 2010 Decided: December 27, 2010
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Terry Michael
Meinecke, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold R. Duckworth appeals his convictions and the
180-month sentence of imprisonment imposed by the district court
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)
(2006), following a guilty plea to felon in possession of a
firearm in violation of 18 U.S.C. § 922(g) (2006), and
possession of stolen firearms in violation of 18 U.S.C. § 922(j)
(2006). Duckworth’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting, in his
opinion, there are no meritorious issues for appeal, but
questioning whether the district court erred in finding that
Duckworth’s four previous drug convictions were committed on
occasions different from one another for purposes of imposing
the enhanced sentence. Duckworth has filed a pro se
supplemental brief claiming that his trial counsel was
ineffective and he received an unconstitutional sentence. We
affirm.
We review Duckworth’s sentence for reasonableness,
using an abuse of discretion standard of review. Gall v. United
States, 552 U.S. 38, 51 (2007). The first step in this review
requires us to ensure that the district court committed no
significant procedural error, such as improperly calculating the
advisory sentencing guidelines range. United States v. Evans,
526 F.3d 155, 161 (4th Cir. 2008). We then consider the
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substantive reasonableness of the sentence, taking into account
the totality of the circumstances. Gall, 552 U.S. at 51.
Although our determination of whether the ACCA enhancement
applies involves review for procedural error, Duckworth’s
assertion that his four previous convictions were not committed
on occasions different from one another is a question of
statutory interpretation that we consider de novo. United
States v. Carr,
592 F.3d 636, 639 n.4 (4th Cir. 2010).
Under the ACCA, a defendant is an armed career
criminal and subject to a fifteen-year mandatory minimum
punishment if he violates 18 U.S.C. § 922(g)(1), and has three
prior convictions for violent felonies or serious drug offenses,
“committed on occasions different from one another.” 18 U.S.C.
§ 924(e)(1); USSG § 4B1.4(a). “Convictions occur on occasions
different from one another if each of the prior convictions
arose out of separate and distinct criminal episodes.” United
States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995)
(internal quotation marks omitted). “In other words, the
predicate ACCA offenses must be those that can be isolated with
a beginning and an end.” United States v. Hobbs,
136 F.3d 384,
388 (4th Cir. 1998) (internal quotation marks and citation
omitted).
To determine whether previous convictions arose out of
separate and distinct criminal episodes, we consider: “(1)
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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) after the defendant committed the first-in-time offense,
did the defendant have the opportunity to make a conscious and
knowing decision to engage in the next-in-time offense.” United
States v. Leeson, 453 F.3d 631, 640 (4th Cir. 2006) (citing
Letterlough, 63 F.3d at 335-37). We may apply these factors
independently or in conjunction, and “if any one of the factors
has a strong presence, it can dispositively segregate an
extended criminal enterprise into a series of separate and
distinct episodes.” United States v. Williams,
187 F.3d 429,
431 (4th Cir. 1999) (quoting
Letterlough, 63 F.3d at 336).
Our review of the record leads us to conclude that the
district court properly found that Duckworth’s four previous
1989 North Carolina drug convictions were committed on occasions
different from one another, and properly counted them as
separate offenses for purposes of the ACCA. We also conclude
that the district court was correct in finding that each one of
Duckworth’s drug convictions qualified as a predicate offense,
subjecting him to a 180-month mandatory minimum sentence of
imprisonment.
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Further, the district court properly calculated
Duckworth’s guidelines range, considered the relevant 18 U.S.C.
§ 3553(a) (2006) factors, made an individualized assessment
based on the facts presented, and adequately explained the
reasons for the chosen sentence in open court sufficient to
satisfy us that it considered the parties’ arguments and had a
reasoned basis for its decision. Thus, we find that the
district court did not procedurally err in imposing the 180-
month sentence of imprisonment. Nor was the sentence imposed
substantively unreasonable. “A statutorily required sentence,
which is what [Duckworth] received, is per se reasonable.”
United States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008).
Therefore, Duckworth’s sentence is both procedurally and
substantively reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. * We therefore affirm Duckworth’s convictions and
sentence. This court requires that counsel inform Duckworth in
*
We decline to consider on direct appeal Duckworth’s claim
that his trial counsel provided ineffective representation. To
allow for adequate development of the record, ineffective
assistance of counsel claims must ordinarily be pursued in
appropriate post-conviction proceedings. See United States v.
Benton, 523 F.3d 424, 435 (4th Cir. 2008). Because ineffective
assistance is not conclusively established by the present
record, Duckworth must pursue this claim on collateral review.
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writing of his right to petition the Supreme Court for further
review. If Duckworth 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 Duckworth.
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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