United States v. Tyson ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4257
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES ELWOOD TYSON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-03-113)
Submitted: October 7, 2004 Decided: October 13, 2004
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Michael Francis Joseph, Assistant
United States Attorney, Angela Hewlett Miller, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Elwood Tyson, Jr., pled guilty to being a felon in
possession of firearm under 18 U.S.C. §§ 922(g)(1), 924(e)(1)
(2000), and was sentenced to 192 months of imprisonment. On
appeal, counsel has filed a brief under Anders v. California, 386
U.S. 738 (1967), alleging that there are no meritorious claims on
appeal, but raising the following issue: whether Tyson’s three
previous convictions were properly considered separate violent
crimes for purposes of sentencing him as an armed career criminal
under § 924(e)(1). Although informed of his right to do so, Tyson
has failed to file a pro se supplemental brief.
We find that Tyson’s three prior felonies were properly
counted for purposes of the enhancement because each conviction
arose out of a separate and distinct criminal episode, United
States v. Letterlough, 63 F.3d 332, 334-35 (4th Cir. 1995), and
because breaking and entering is considered a violent crime under
the enhancement. United States v. Bowden, 975 F.2d 1080, 1083-85
(4th Cir. 1992) (holding that breaking and entering under North
Carolina is considered a violent felony for career offender
purposes). Accordingly, this claim fails.
We have examined the entire record in this case, in
accordance with the requirements of Anders, and find no meritorious
issues for appeal. Accordingly, we affirm. We deny counsel’s
pending motion to withdraw. This court requires that counsel
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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 in 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 are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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