United States v. Kelvin Vanhook, Jr. , 495 F. App'x 308 ( 2012 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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) (2006), based on prior convictions for
distribution of cocaine. Vanhook appeals, arguing that the
district court erred in sentencing him as an armed career
criminal. We affirm.
We consider de novo questions of statutory
interpretation involving the application of the ACCA
enhancement. 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 offenses “committed on
occasions different from one another.” 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.” Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000); see United States v.
Cheek, 415 F.3d 349, 354 (4th Cir. 2005). A sentencing judge
“cannot resolve a ‘disputed fact . . . about a prior
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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 established by one of the sources approved in
Shepard.” Id.; see Boykin, 669 F.3d at 470-71.
Vanhook argues that a jury is required to determine
whether a defendant’s prior offenses occurred on different
occasions. However, we have previously concluded 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 the ACCA. Offenses occur “on different
occasions when they arise out of a separate and distinct
criminal episode.” Boykin, 669 F.3d at 470 (internal quotation
marks and emphasis omitted). Thus, the ACCA includes as
different occasions “only those predicate offenses that can be
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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 court properly treated Vanhook’s offenses as
occurring on different occasions, and thus proper ACCA
predicates. See Letterlough, 63 F.3d at 337; cf. United
States v. Tucker, 603 F.3d 260, 265-66 (4th Cir. 2010)
(concluding that burglary convictions did not occur on different
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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
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