US v. Kelvin Vanhook, Jr., No. 12-4200 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4200 UNITED STATES OF AMERICA, Plaintiff Appellee, v. KELVIN DWAIN VANHOOK, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:11-cr-00512-LMB-1) Submitted: September 21, 2012 Decided: October 11, 2012 Before GREGORY, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Kevin R. Brehm, Assistant Federal Public Defender, Alexandria, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Kara Martin Traster, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kelvin Dwain Vanhook, Jr. was convicted by a jury of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006). He was sentenced to 180 months imprisonment under the Armed Career Criminal Act ( ACCA ), 18 U.S.C. § 924(e) distribution district criminal. of court (2006), based cocaine. erred in on Vanhook prior convictions appeals, sentencing him arguing as an for that armed the career We affirm. We consider interpretation enhancement. de involving novo the questions of application statutory of the ACCA United States v. Carr, 592 F.3d 636, 639 n.4 (4th Cir.), cert. denied, 131 S. Ct. 82 (2010). A defendant is properly classified as an armed career criminal if he violates 18 U.S.C. § 922(g) and has at least three previous convictions for violent felonies or serious drug occasions different from one another. offenses committed on 18 U.S.C. § 924(e)(1). Under the Sixth Amendment, [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. New Jersey, 530 U.S. 466, 490 (2000); see Apprendi v. United States v. Cheek, 415 F.3d 349, 354 (4th Cir. 2005). A sentencing judge cannot . resolve a disputed fact 2 . . about a prior conviction, if doing so requires data that was not inherent in that prior conviction. United States v. Boykin, 669 F.3d 467, 470-71 (4th Cir. 2012) (quoting Shepard v. United States, 544 U.S. 13, 25 (2005)). However, some facts are so inherent in a conviction that they need not be found by a jury. United States v. Thompson, 421 F.3d 278, 282 (4th Cir. 2005). Thus, a court may consider such inherent facts, including the date [of conviction], statutory violation, and the like[,] where [they are] properly Shepard. established by one of the sources approved in Id.; see Boykin, 669 F.3d at 470-71. Vanhook argues that a jury is required to determine whether a occasions. defendant s However, prior we offenses have occurred previously on concluded different that a sentencing judge may undertake the ACCA s separateness inquiry by reference to Shepard-approved sources. See Boykin, 669 F.3d at 471; Thompson, 421 F.3d at 285-86. Vanhook also contends that the Government failed to prove that his convictions for distributing cocaine on September 3, 16, and 22, 2003, should be treated as occurring on different occasions under occasions when the they criminal episode. marks and emphasis ACCA. arise Offenses out of a occur on separate and different distinct Boykin, 669 F.3d at 470 (internal quotation omitted). Thus, the ACCA includes as different occasions only those predicate offenses that can be 3 isolated with a beginning and an end ones that constitute an occurrence unto themselves. United States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995). In determining whether prior convictions were separate occasions, we consider (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. Carr, 592 F.3d at 644. We can consider these factors together or independently, 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. Id. (quoting Letterlough, 63 F.3d at 336). Here, the Shepard-approved record establishes that Vanhook himself dealt cocaine on three different days separated by approximately one to two weeks. Even assuming, as Vanhook asserts, that the Government bears the burden of establishing each of the Carr factors, we conclude without difficulty that the district occurring predicates. States v. on court properly different See Tucker, treated occasions, Letterlough, 603 F.3d 63 260, Vanhook s and F.3d thus at 265-66 337; (4th offenses proper as ACCA cf. United Cir. 2010) (concluding that burglary convictions did not occur on different 4 occasions under the ACCA because the Government could not establish any Carr factor in the absence of evidence that Tucker himself participated in multiple burglaries). Accordingly, we affirm the district court s judgment. 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 5
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