United States v. Benjamin Davis ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4778
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENJAMIN ROBERT DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:11-cr-00311-BO-1)
Submitted: May 30, 2013 Decided: June 11, 2013
Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joshua B. Howard, GAMMON, HOWARD, ZESZOTARSKI, PLLC, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Benjamin Robert Davis pled guilty to being a felon in
possession of a firearm and ammunition in violation of 18 U.S.C.
§ 922(g)(1) (2006) and was sentenced to 180 months of
imprisonment. His sentence was enhanced under the Armed Career
Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1) (2006). On
appeal, Davis raises two issues, whether: (1) his three state
court convictions for arson should be treated as only one
conviction for purposes of the ACCA enhancement; * and (2) the
district court failed to address the required factors and
applied an erroneous standard in assessing the applicability of
the ACCA. For the reasons that follow, we affirm.
Davis raises only sentencing errors on appeal. After
United States v. Booker, 543 U.S. 220 (2005), we review a
sentence for reasonableness applying a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 49
(2007). This Court first must ensure that the district court
committed no significant procedural error. Id. at 51. Only if
the sentence is procedurally reasonable can this Court evaluate
the substantive reasonableness of the sentence, again using the
*
The burnings were of separately owned residences, on the
same street, ignited on the same night from inside the
structures.
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abuse-of-discretion standard of review. Id.; United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009).
We review de novo a district court’s application of a
statutory sentencing enhancement. United States v. Letterlough,
63 F.3d 332, 334 (4th Cir. 1995). Under the ACCA, a defendant
is an armed career criminal and subject to a fifteen-year
mandatory-minimum sentence if he violates 18 U.S.C. § 922(g)(1)
and has at least three prior convictions for violent felonies or
serious drug offenses “committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1). Convictions occur on
occasions different from one another if each of the prior
convictions arose out of a separate and distinct criminal
episode. Letterlough, 63 F.3d at 335. In other words, the
predicate ACCA offenses must be those that can be isolated with
a beginning and an end. United States v. Hobbs, 136 F.3d 384,
388 (4th Cir. 1998). Davis has failed to show reversible error
in the district court’s application of the ACCA enhancement.
Next, Davis contends that the district court failed to
address the required factors and applied an erroneous standard
in assessing the applicability of the ACCA enhancement. In
particular, Davis argues that the district court failed to
assess his claims under the factors discussed in United States
v. Carr, 592 F.3d 636, 644 (4th Cir. 2010), which relied on
Letterlough. We find no reversible error. Defense counsel
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carefully reviewed the Carr factors at sentencing, the district
court adequately explained its decision to apply the
enhancement, and the district court’s application of the ACCA
enhancement in this matter comfortably fits within our case law
on the issue. See Carr, 592 F.3d at 645 (upholding ACCA
designation based on conclusion that breakings or enterings of
thirteen different storage units, with ten different victims,
were “separate and distinct criminal episodes for purposes of
the ACCA”); Hobbs, 136 F.3d at 389 (“[T]he fact that there were
multiple victims decisively tips the scales in favor of
concluding that each burglary was a separate and distinct
criminal episode.” (internal quotation marks omitted);
Letterlough, 63 F.3d at 335 (“Convictions occur on occasions
different from one another if each of the prior convictions
arose out of a separate and distinct criminal episode.”
(internal quotation marks omitted)).
Accordingly, we affirm. 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
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