US v. Derick Harper

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to strike [999872040-2]; denying Motion to supplement [999884366-3]; denying Motion for leave to file [999884366-2] Originating case number: 5:13-cr-00272-D-1 Copies to all parties and the district court/agency. [999926007].. [15-4440]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4440

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERICK MONTIQUE HARPER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:13-cr-00272-D-1)

Submitted:

July 28, 2016

Decided:

September 9, 2016

Before MOTZ, KEENAN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant.
John Stuart Bruce, Acting United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Derick

Montique

Harper

pled

firearm by a convicted felon.

guilty

to

possession

of

a

The district court applied the

Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (ACCA), and
sentenced Harper to 144 months’ imprisonment.

On appeal, Harper

argues that the district court erred by denying him funds to
secure the expert of his choice and by applying the ACCA based
on a finding that a series of burglaries and kidnappings that he
committed on February 24, 1997, constituted multiple predicates. 1
We affirm.

1

Harper also asserts that the trial court should have
granted him a greater departure or variance based on factors
such as his military service and post-traumatic stress disorder,
but concedes that this claim is not viable unless the Court
finds that the ACCA is inapplicable. Because the district court
properly applied the ACCA, this argument warrants no further
analysis.
Harper also argues that the district court erred by
imposing a 2-level enhancement for obstruction of justice under
USSG § 3C1.1 based on the risk posed by his flight.
But the
district court imposed a substantial risk enhancement under USSG
§ 3C1.2, not an obstruction of justice enhancement under USSG
§ 3C1.1.
Moreover, this enhancement did not affect Harper’s
Sentencing Guidelines range, which was determined by the armed
career criminal Guideline and then adjusted upward to the
statutory minimum. See USSG §§ 4B1.4(b)(3)(B), 5G1.1(b).
In its response brief, the Government asserts that Harper’s
challenges to the § 3C1.2 enhancement and the denial of a
greater departure or variance are barred by his appellate
waiver.
Because the only claims for which the Government
asserts the waiver are plainly meritless, we do not reach the
issue of whether the waiver is valid and enforceable.

2

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On Harper’s motion, the district court had Harper evaluated
by

Dr.

Manuel

E.

Gutierrez,

a

prison

psychologist,

who

provisionally diagnosed him with post-traumatic stress disorder
(PTSD).

Believing

this

evaluation

to

be

inadequate,

sought funds to retain Dr. Richard Weisler.
this

request

and

instead

second evaluation.
we

review

it

ordered

Dr.

Harper

The court denied

Gutierrez

to

conduct

a

Harper challenges this ruling on appeal, and

for

abuse

of

discretion.

United

Hartsell, 127 F.3d 343, 349 (4th Cir. 1997).

States

v.

Under 18 U.S.C.

§ 3006A(e) (2012), indigent defendants are entitled to funds for
expert services necessary to their adequate defense.

Id.

“[A]

defendant who alleges that a denial of [§ 3006A(e)] funds has
violated due process must demonstrate by clear and convincing
evidence that the denial resulted in actual prejudice to the
defense.”

Id.

examination

Because Harper has not shown prejudice from his

only

by

Dr.

Gutierrez

and

not

Dr.

Weisler,

we

conclude that he has failed to establish that the district court
abused its discretion.
Harper also argues that his February 1997 offenses do not
constitute separate ACCA predicates.
district

court’s

qualifying

legal

convictions

from one another.”

conclusion
were

“We review de novo the

that

committed

. . .
on

[a

defendant’s]

occasions

different

United States v. Span, 789 F.3d 320, 325

(4th Cir. 2015) (internal quotation marks omitted).
3

“However,

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we

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review

judgment

the

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district

regarding

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court’s

factual

factual

disputes,

findings,

for

clear

and

error.”

its
Id.

“[C]lear error occurs when a district court’s factual findings
are against the clear weight of the evidence considered as a
whole.”

Id. (internal quotation marks omitted).

We have come to rely on five factors to determine
whether predicate ACCA offenses were committed on
different occasions: (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.
United States v. Linney, 819 F.3d 747, 751 (4th Cir. 2016); see
United States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995)
(setting forth factors).
Having

reviewed

the

record,

we

agree

with

the

district

court that Harper’s February 1997 offenses, which occurred at
different

times

constituted

at

and

in

least

at

three

least

three

distinct

different

ACCA

locations,

predicates.

See

Linney, 819 F.3d at 752-53 (finding separate predicates under
similar circumstances).

Although Harper argues that his PTSD

rendered him psychologically incapable of ceasing his criminal
conduct between offenses, the evidence does not indicate that
Harper’s

decision

unknowing,

and

to

continue

Harper’s

his

guilty
4

spree

pleas

was

unconscious

establish

that

he

or
had

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sufficient mens rea to convict him of kidnapping, burglary, and
breaking

and

entering.

Accordingly,

we

conclude

that

the

district court did not err in finding that Harper’s February
1997 offenses occurred on at least three separate occasions.
Next,
predicates
another”

Harper
be

is

argues

that

“committed

on

the

ACCA’s

occasions

unconstitutionally

vague

States, 135 S. Ct. 2551 (2015). 2

requirement

different

under

Johnson

that

than
v.

one

United

The Johnson Court found that

the residual clause of the ACCA’s definition of “violent felony”
was unconstitutionally vague because the Supreme Court’s many
attempts to devise a workable standard for applying that clause
had failed.

135 S. Ct. at 2557-60.

In contrast, this Court has

long applied the Letterlough factors with none of the problems
cited in Johnson.

See, e.g., Linney, 819 F.3d at 751.

As a

result, we conclude that Johnson does not call into question the
validity of the ACCA’s requirement that predicate offenses be
committed on different occasions.
Finally,
authorities

in

Harper
which

has
he

filed

notes

the

a

notice
Supreme

of

Court’s

Mathis v. United States, 136 S. Ct. 2243 (2016).
2

supplemental
ruling

in

In light of

Harper seeks to assert an Eighth Amendment challenge to
the ACCA, but such a challenge has already been rejected by this
court, and the fact of Harper’s PTSD does not alter this
analysis.
United States v. Presley, 52 F.3d 64, 68 (4th Cir.
1995).

5

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Mathis,

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Harper

seeks

to

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retract

his

concession

that

North

Carolina second-degree kidnapping is a violent felony and to
challenge the use of this offense as an ACCA predicate.

The

Government

has

has

moved

leave

for

issue.

moved

to

strike

to

file

a

this

request,

supplemental

and

brief

Harper

asserting

this

We agree with the Government that Harper waived this

issue by expressly disclaiming it at sentencing.

United States

v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014) (“A party who
identifies
waived

an

the

issue,

and

issue.”

then

explicitly

(internal

withdraws

quotation

marks

it,

has

omitted)).

Moreover, even if this issue were deemed forfeited rather than
waived, it would not entitle Harper to relief because any error
in this respect is not plain.

Compare Mathis, 136 S. Ct. at

2249, 2257 (holding that where statute provides “various factual
means of committing a single element,” as opposed to multiple
alternative elements, courts may not apply modified categorical
approach to determine which of those factual means defendant
used) with United States v. Flores-Granados, 783 F.3d 487, 49298 (4th Cir.) (applying categorical approach to hold that North
Carolina

second-degree

kidnapping

violence

under

2L1.2

USSG

§

is

because

categorically
it

crime

constitutes

of

generic

kidnapping), cert. denied, 136 S. Ct. 224 (2015).
Accordingly, we affirm the judgment of the district court.
We

deny

as

moot

the

Government’s
6

motion

to

strike

and

deny

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Harper’s motion for leave to file a supplemental brief because
Harper has waived the issue he now seeks to assert.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.
AFFIRMED

7