United States v. Autery , 358 F. App'x 464 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4201
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
D’NEZ DEVON AUTERY,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00167-JAB-1)
Submitted: October 16, 2009 Decided: December 31, 2009
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Darren Byers, LAW OFFICES OF J. DARREN BYERS, P.A., Winston-
Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Lisa B. Boggs, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
D’Nez Devon Autery pled guilty pursuant to a written
plea agreement to possessing a firearm after being convicted of
a felony, in violation of 18 U.S.C. § 922(g)(1) (2006). The
court sentenced Autery to the statutory minimum sentence of 180
months’ imprisonment as a result of his armed career criminal
status, and he timely appealed. Autery’s attorney filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious grounds for appeal, but
questioning on Autery’s behalf whether the district court erred
in finding he was an armed career criminal pursuant to 18 U.S.C.
§ 924(e) (2006). Autery was given the opportunity to file a pro
se supplemental brief, but declined. The Government filed a
brief urging affirmance. Finding no reversible error, we
affirm.
Autery contends the district court erred when it found
he had at least three previous convictions for violent offenses
and was thus subject to enhanced penalties as an armed career
criminal pursuant to 18 U.S.C. § 924(e). The evidence showed at
least four predicate offenses, two convictions for breaking and
entering, see United States v. Bowden, 975 F.2d 1080, 1082-85
(4th Cir. 1992), one conviction for attempted breaking and
entering, see United States v. Custis, 988 F.2d 1355, 1364 (4th
Cir. 1993), and one conviction for discharging a weapon into
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occupied property. The two breaking and entering convictions
occurred on the same day and all four convictions were
consolidated at sentencing.
In considering whether the district court properly
designated Autery an armed career criminal, this court reviews
the district court’s legal determinations de novo and its
factual findings for clear error. United States v. Wardrick,
350 F.3d 446, 451 (4th Cir. 2003). A person who violates
§ 922(g)(1), possession of a firearm by a convicted felon, and
has three prior convictions for violent felonies or serious drug
offenses committed on different occasions is an armed career
criminal subject to enhanced penalties. See 18 U.S.C.
§ 924(e)(1). “Occasions” are “those predicate offenses that can
be 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). Factors to look at are
whether the convictions concern different geographical locations
and different victims. Id. at 335-36. In Letterlough, two
prior drug convictions occurred on separate occasions although
the drug transactions were only two hours apart. Each drug sale
was a complete and separate transaction. In United States v.
James, 337 F.3d 387, 391 (4th Cir. 2003), the court found that
two burglaries occurring at two different stores, across the
street from each other, on the same day, occurred on separate
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occasions. In United States v. Hobbs, 136 F.3d 384, 387-89 &
n.5 (4th Cir. 1998), the court found that each of three
burglaries occurring in the space of a single hour “occurred on
an occasion different from the others.” Id. at 389.
Thus, we find Autery had at least four qualifying
convictions and was properly designated an armed career
criminal. Even if only one of the breaking and entering
convictions should have counted as a predicate § 924(e)
conviction, there was no error because Autery still had three
qualifying convictions.
We find no error in the sentence as the district court
was without discretion to impose a sentence lower than the
statutory minimum sentence of 180 months’ imprisonment. United
States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Autery’s conviction and sentence. This
court requires counsel inform Autery, in writing, of the right
to petition the Supreme Court of the United States for further
review. If he requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Autery. We dispense with oral argument because
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the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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