United States v. Hobbs ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-4323
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH RANDALL HOBBS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James C. Turk, District Judge.
(CR-96-10-A)
Submitted: June 16, 1999 Decided: December 10, 1999
Before WIDENER and NIEMEYER, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Dennis E. Jones, Angela D. Childress, DENNIS E. JONES & ASSOCIATES,
P.C., Lebanon, Virginia, for Appellant. Robert P. Crouch, Jr.,
United States Attorney, S. Randall Ramseyer, Assistant United
States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joseph Hobbs was convicted by a jury of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g) (1994).
At sentencing, the district court declined to apply the enhanced
sentencing provision of the Armed Career Criminal Act ("ACCA"), 18
U.S.C. § 924(e), because it determined that Hobbs’ three prior
burglaries were not offenses "committed on occasions different from
one another." 18 U.S.C. § 924(e)(1). This court affirmed Hobbs'
conviction but remanded for resentencing under the ACCA because
each of the three burglaries should have been treated as a
"separate and distinct crime, and thus each constitutes an occasion
different from the others such that application of the ACCA is
mandated." United States v. Hobbs, 136 F.3d 384, 390 (4th Cir.),
cert. denied, U.S. , 66 USLW 3800 (U.S. June 22, 1998)
(No. 97-9187).
On remand, the district court sentenced Hobbs as an armed
career criminal to 188 months imprisonment—the low end of the
guidelines range. His attorney has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), in which he asserts
that there are no meritorious issues for appeal but identifies one
potential claim regarding the propriety of the district court's
application of the sentencing guidelines. Hobbs has filed a motion
to file a supplemental pro se brief out of time. We grant the
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motion. In his brief, Hobbs claims that the firearm at issue was
seized improperly; he was denied effective assistance of counsel at
his trial; and the sixty-three month sentence originally imposed
was proper.
We find that the district court properly sentenced Hobbs as an
armed career criminal in accordance with this court's mandate. The
claims raised by Hobbs in his supplemental pro se brief are not
properly before the court in this appeal. They were not raised at
the resentencing hearing and could not have been raised because
they were beyond the scope of the remand. See United States v.
Bell, 5 F.3d 64, 66-67 (4th Cir. 1993) (when mandate of appeal
court is precise, district court may not consider issues which
mandate laid to rest). Pursuant to the requirements of Anders, we
have reviewed the record for potential error and have found none.
Therefore, we affirm Hobbs' sentence. This court requires that
counsel inform his client, in writing, 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 that a copy thereof was served on the client. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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