US v. Demetrius Hill, No. 13-4910 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4910 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEMETRIUS HILL, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:12-cr-00288-WO-1) Submitted: June 19, 2014 Decided: June 23, 2014 Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Jonathan Leonard, LAW OFFICE OF JONATHAN LEONARD, 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 Unpublished opinions are not binding precedent in this circuit.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: Demetrius Hill pled guilty pursuant to a written plea agreement to possession of a firearm by a convicted felon, in violation district of 18 court U.S.C. §§ sentenced 922(g)(1), Hill as an 924(a)(2) armed (2012). career The criminal, pursuant to 18 U.S.C. § 924(e) (2012), to 192 months in prison. On appeal, counsel for Hill filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious district issues court for erred in appeal but sentencing questioning Hill as an whether armed the career criminal, because two of the predicate offenses should not have been counted separately and none of the predicate felonies were charged in the indictment or proven beyond a reasonable doubt. Hill has not filed a pro se supplemental brief, despite notice of his right to do so. We affirm. At sentencing, Hill objected to his designation as an armed career criminal based on the fact that he was convicted of two of the predicate offenses, felony delivery of cocaine, on the same day. were committed However, the crimes for which he was convicted on occasions different from one another, arising out of separate and distinct criminal episode[s], such that the district court properly overruled the objection. 18 U.S.C. § 924(e); United States v. Davis, 689 F.3d 349, 358 59 (4th Cir. 2012) (quoting United States v. Letterlough, 63 F.3d 2 332, 335 (4th Cir. 1995)). We therefore conclude that the district court did not err in counting Hill s prior felonies as separate offenses under the Armed Career Criminal Act. Counsel also posits that Hill s constitutional rights were violated because armed career criminal the predicate designation offenses were not supporting charged in indictment or found by a jury beyond a reasonable doubt. argument is foreclosed by circuit precedent. his the This See United States v. Thompson, 421 F.3d 278, 284 n.4 (4th Cir. 2005) (holding that an indictment need not reference or list the prior convictions used to enhance a sentence); United States v. Cheek, 415 F.3d 349, 352 54 (4th Cir. 2005) (holding that prior convictions used as the basis for an armed career criminal sentence need not be charged in the indictment or proven beyond a reasonable doubt); see also Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013) (recognizing the narrow exception for fact of a prior conviction). Accordingly, the district court did not err in sentencing Hill as an armed career criminal. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court s judgment. This court requires that counsel inform Hill, in writing, of the right to petition the Supreme Court of the review. If Hill requests that a petition be filed, but counsel 3 United States for further believes that such a petition would be frivolous, then counsel may move in representation. this and materials legal before for leave to withdraw from Counsel s motion must state that a copy thereof was served on Hill. facts court We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. AFFIRMED 4
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