US v. Anthony Robert Stoke, No. 10-5186 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5186 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ANTHONY ROBERT STOKES, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:09-cr-00355-NCT-1) Submitted: June 30, 2011 Decided: July 5, 2011 Before WILKINSON, DUNCAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Warren Sparrow, Winston-Salem, North Carolina, for Appellant. Ripley Rand, United States Attorney, Paul A. Weinman, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Anthony Robert Stokes pled guilty to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006). He now appeals his 188-month sentence imposed by the district court under the Armed Career Criminal Act ( ACCA ), 18 U.S.C. § 924(e) (2006), asserting that the district court erred in finding that his three prior convictions under North Carolina law for breaking and entering were committed on occasions different from purposes of imposing the enhanced sentence. one another for Finding no error, we affirm. We review Stokes sentence for reasonableness, using an abuse of discretion standard States, 552 U.S. 38, 51 (2007). requires us significant the to ensure that procedural advisory review. Gall v. United The first step in this review the error, sentencing of district such Guidelines as court committed improperly range. Evans, 526 F.3d 155, 161 (4th Cir. 2008). no calculating United States v. We then consider the substantive reasonableness of the sentence, taking into account the totality Although our of the circumstances. determination of Gall, whether the 552 U.S. ACCA at 51. enhancement applies involves review for procedural error, Stokes assertion that his three prior convictions were not committed on occasions different from one another is 2 a question of statutory interpretation that we consider de novo. United States v. Carr, 592 F.3d 636, 639 n.4 (4th Cir.), cert. denied, 131 S. Ct. 82 (2010). Under criminal the and ACCA, subject a a to defendant is fifteen-year an armed mandatory career 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. § 924(e)(1); (2009). U.S. Sentencing Convictions occur Guidelines on Manual occasions 18 U.S.C. § different 4B1.4(a) from one another if each of the prior convictions arose out of a separate and distinct criminal episode. 63 F.3d 332, omitted). 335 (4th Cir. United States v. Letterlough, 1995) (internal quotation marks 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 a separate and (1) whether the locations; (2) substantively distinct criminal offenses arose episode, in we different whether the nature of different; (3) whether each each consider: geographic offense offense was involved different victims; (4) whether each offense involved different criminal objectives; and (5) after the defendant committed the 3 first-in-time offense, did the defendant have the opportunity to make a conscious and knowing decision to engage in the next-intime 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. Williams, 187 F.3d 429, 431 (4th United States v. 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 Stokes three prior breaking and entering convictions were committed on occasions different from one another and, therefore, properly separate offenses for purposes of the ACCA. counted them as See Carr, 592 F.3d at 644-45 (holding prior North Carolina convictions for felony breaking or entering were separate and distinct criminal episodes for purposes of applying ACCA where Carr broke into thirteen separate storage units, the crimes involved multiple victims and, as he committed each of the thirteen crimes, Carr had the opportunity to make a conscious and knowing decision to engage in another crime). 4 Because the district court did not err in imposing a sentence under the dispense with oral ACCA, we argument affirm because Stokes the sentence. * facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED * In light of our ruling, we find moot Stokes argument that his 1999 attempted common law robbery conviction cannot be used as a predicate offense under the ACCA. 5

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