US v. Gerald Gray

Filing 920090406

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4296 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GERALD GRAY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:06-cr-00165-BO-1) Submitted: March 12, 2009 Decided: April 6, 2009 Before WILKINSON, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gerald Gray pled guilty pursuant to a written plea agreement to possession of a firearm by a felon, in violation of 18 U.S.C. 922(g)(1) (2006). The district court determined the statutory conditions set forth in the Armed Career Criminal Act ("ACCA"), see 18 U.S.C. 924(e) (2006), were satisfied and sentenced Gray to the statutory mandatory minimum of 180 months' imprisonment. Finding no error, we affirm. filed a brief pursuant to Anders v. Counsel California, 386 U.S. 738 (1967), in which he asserts there are no meritorious issues for appeal but questions whether the manner in which prior offenses are counted under the ACCA and the career offender guideline provision invites unwarranted sentencing disparity. stating counsel's The Government filed a responding brief, is foreclosed by this court's argument precedent. Gray was notified of his right to file a pro se supplemental brief, but he did not do so. Initially, we conclude Gray was properly classified as an armed career criminal. offenses States involving v. Bowden, North Gray's criminal history includes ten and entering 1080, breaking under homes. (4th See Cir. United 1992) statute ten breaking 975 F.2d 1085 or (determining qualifies as Carolina entering predicate conviction ACCA). These offenses, which were each charged separately, occurred on eight 2 different dates, in different geographical locations, and involved different victims. See United States v. Thompson, 421 F.3d 278, 284-86 (4th Cir. 2005) (explaining ACCA's requirement that prior convictions be "committed on occasions different from one another"); United States v. Williams, 187 F.3d 429, 431 (4th Cir. 1999) (same). Furthermore, the fact that nine of the offenses were consolidated for sentencing does not merge the offenses under the ACCA as "[n]othing in 924(e) or the Guidelines suggests that offenses must be tried or sentenced separately offenses." Cir. 1992). in order to be counted as separate predicate United States v. Samuels, 970 F.2d 1312, 1315 (4th Therefore, Gray clearly has the requisite number of predicate convictions required for enhancement under the ACCA. Counsel, however, asserts that the manner in which convictions are counted under the ACCA creates an unwarranted sentencing disparity from those individuals enhanced under the career offender guideline provision. This argument is without merit as the ACCA and career offender guideline provision, while both addressing recidivist offenders, have different purposes. The ACCA was enacted to provide an increased statutory mandatory minimum for defendants who violate 922(g)(1) and have three prior convictions "for a violent felony or a serious drug offense, or both." 18 U.S.C. 924(e)(1). This contrasts with the career offender guideline provision, which implements the 3 directive of 28 U.S.C. 944(h) (2006), requiring the Sentencing Commission applicable convicted to specify terms maximum of of imprisonment defendants or a at or near have the been statutory of a crime for who violence controlled substance offense and have two or more prior convictions for crimes of violence or controlled substance offenses. U.S. Sentencing Thus, any Guidelines Manual 4B1.1, comment. (backg'd) (2006). disparity in sentencing among armed career criminals and career offenders (addressing does not to implicate avoid 18 U.S.C. 3553(a)(6) sentence (2006) "need unwarranted disparities among defendants with similar records who have been found guilty of similar conduct"). In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. court. writing, Accordingly, we affirm the judgment of the district This court requires that counsel inform his client, in of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel's motion must state We dispense with contentions are that a copy thereof was served on the client. oral argument because the facts and legal 4 adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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