United States v. Cook ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4607
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DERRICK MCKNIGHT COOK,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Matthew J. Perry, Jr., Senior
District Judge. (CR-03-1141)
Submitted: January 31, 2006 Decided: February 28, 2006
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Tara L. McGregor, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Derrick McKnight Cook pled guilty to possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was
sentenced as an armed career criminal, 18 U.S.C. § 924(e) (2000),
to fifteen years imprisonment. Cook’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
there were no meritorious grounds for appeal. However, counsel
addresses whether the district court erred in finding that (1) Cook
had at least three prior crimes of violence, committed on different
occasions, for purposes of § 924(e); and (2) the three burglary
convictions were not related cases under U.S. Sentencing Guidelines
Manual § 4A1.2 (2003). Cook has filed pro se supplemental briefs,
arguing that (1) his sentence violates the Sixth Amendment under
United States v. Booker, 543 U.S. 220 (2005); (2) at the time of
his arrest he was intoxicated and therefore unaware of the charges
against him; and (3) his guilty plea was not knowingly and
voluntarily entered.
The presentence report listed the following four
predicate convictions for armed career criminal purposes: (1)
second degree burglary (“Dwelling Non-Violent”); (2) second degree
burglary (“Dwelling Non-Violent”); (3) armed robbery; and (4)
burglary and grand larceny. All four offenses took place over a
five-day period between September 17, 1993, and September 21, 1993,
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when Cook was 19 years old. He pled guilty to all four offenses on
the same date--October 12, 1993--waiving his right to an attorney.
Under 18 U.S.C. § 924(e)(2)(B), a “violent felony” is any
crime punishable by imprisonment for a term exceeding one year that
either “(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; (ii) or is
burglary, arson or extortion. . .” The statute does not define
“committed on occasions different from one another.”
This court considers three factors in determining whether
offenses occurred on the same occasion and thus should count as
only one predicate offense: “whether the offenses arose in
different geographic locations; whether the nature of the offenses
was substantively different; and whether the offenses involved
multiple victims or multiple criminal objectives.” United
States v. Letterlough, 63 F.3d 332, 335-36 (4th Cir. 1995)
(footnotes omitted); see United States v. Thompson, 421 F.3d 278,
285 (4th Cir.) (collecting cases applying factors), pet. for cert.
filed (Oct. 25, 2005) (No. 05-7266). A conviction is considered to
have “occur[red] 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 (internal quotation marks
and citation omitted). Specifically, the court considers, among
other factors, whether the time interval between the crimes
underlying the convictions allowed the accused sufficient time to
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“make a conscious and knowing decision” to engage in subsequent
criminal acts. Id. at 337. Separate offenses are not made related
simply because the defendant received concurrent sentences. United
States v. Breckenridge, 93 F.3d 132, 138 (4th Cir. 1996) (citations
omitted).
We find that Cook’s prior crimes are not related because
each burglary was completed before the next burglary began, each
was committed at a different location and involved a different
victim. Moreover, the convictions were not related solely because
they were consolidated for sentencing. In order to qualify as a
consolidated case, the sentencing court must enter a formal order
consolidating the cases for sentencing. United States v. Allen, 50
F.3d 294, 297-98 (4th Cir. 1995). Although the sentences appear to
have been imposed on the same date and were concurrent, there is no
evidence that the sentencing court entered a formal order of
consolidation, and concurrent sentences alone do not render
offenses related. See id. at 297.
Next, counsel addresses whether the district court erred
in determining Cook’s criminal history points under USSG § 4A1.2.
However, as counsel concedes, any error in Cook’s guideline
calculation was harmless because he was sentenced to the statutory
mandatory minimum sentence. Moreover, Cook’s criminal history
category (VI) would have remained unchanged had the court accepted
his challenge to the calculation of his criminal history points.
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In his pro se supplemental brief, Cook argues that his
sentence violates Booker because the district court sentenced him
as an armed career criminal based on facts not included in the
indictment, admitted by him, or found by a jury beyond a reasonable
doubt. Cook’s argument is foreclosed by Thompson, in which we held
that the use of prior offenses to invoke the statutory armed career
criminal enhancement under § 924(e) is permissible without
indictment presentment or jury submission so long as no facts
extraneous to the facts necessary to support the enhancement need
be decided to invoke the enhancement. 421 F.3d at 282-84. Here,
because the facts necessary to support the application of the armed
career criminal enhancement “inhere in the fact of conviction,” we
find no constitutional error under Booker.
Next, Cook claims that he was intoxicated at the time of
his arrest. However, by pleading guilty, Cook has waived any
claims with respect to antecedent non-jurisdictional defects. See
United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993);
Tollett v. Henderson, 411 U.S. 258, 267 (1973). Cook also
challenges the voluntariness of his guilty plea. However, our
review of the transcript reveals that the district court fully
complied with Fed. R. Crim. P. 11.
In accordance with the requirements of Anders, we have
reviewed the entire record in this case and have found no
meritorious issues for appeal. Accordingly, we affirm Cook’s
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conviction and 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 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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