United States v. Dais ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4922
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NORMAN TYRONE DAIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-03-386)
Submitted: March 31, 2006 Decided: May 2, 2006
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kathy Price Elmore, ELMORE & ERVIN, L.L.C., Florence, South
Carolina, for Appellant. Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Norman Tyrone Dais pled guilty to knowingly possessing
and affecting commerce a firearm and ammunition by a convicted
felon, in violation of 18 U.S.C. §§ 922(g), 924(e) (2000). The
district court sentenced Dais under the Armed Career Criminal Act
(“ACCA”), to 294 months’ imprisonment, five years of supervised
release, and ordered payment of a $100 statutory assessment, as
well as $40 in restitution.1 Dais’ counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
there are no meritorious grounds for appeal, but questioning
whether: (1) his sentence violated Blakely v. Washington, 542 U.S.
296 (2004), and United States v. Booker, 543 U.S. 220 (2005); (2)
the district court erred in denying Dais a reduction for acceptance
of responsibility; and (3) the district court erred in its denial
of Dais’ motion to compel the Government to move for a downward
departure. Dais was given an opportunity to file a pro se
supplemental brief, and has asserted a number of errors, including
a number of challenges to the district court’s assessment of an
1
The probation officer calculated a sentencing guideline range
of 262 to 327 months’ imprisonment founded on a base offense level
of 24, pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 2K2.1(a)(2)(2002), and an adjusted offense level of 28, after
application of a four-level increase based on the use of a firearm
in connection with another felony, pursuant to USSG § 2K2.1(b)(5).
Then the probation officer revised the calculation pursuant to USSG
§ 4B1.4, based upon her determination that Dais had been convicted
of at least three prior violent felonies, committed on occasions
different from one another, to an adjusted offense level of 34, and
a criminal history category of VI.
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ACCA enhancement. Pursuant to this court’s request, counsel has
supplemented her brief with a discussion of the ACCA and the
applicability of Shepard v. United States, 544 U.S. 13 (2005), and
United States v. Washington, 404 F.3d 834 (4th Cir. 2005), to this
case.
Dais’ first error on appeal is that the district court
erred in sentencing him as an armed career criminal in violation of
United States v. Booker, 543 U.S. 220 (2005), and his Sixth
Amendment rights. Specifically, he contends that while two of his
five prior convictions were to residences (the 1991 offenses),2 the
indictments relative to those charges specified “non-violent”
second-degree burglary and it was to those charges that he pled
guilty, such that they may not properly be relied upon by the
district court in its enhancement under 18 U.S.C. § 924(e)(1). He
further asserts that the remaining three burglary charges were to
commercial buildings, and claims one of those occurred while he was
a juvenile, rendering them likewise improper predicate offenses
under the ACCA. We find his claim to be without merit.
The ACCA provides for a mandatory minimum sentence of
fifteen years for a defendant who violates § 922(g) if the
defendant has three previous convictions “for a violent felony or
2
Dais has admitted to the following five prior convictions:
(1) a 1986 burglary, third, conviction based on an offense that
occurred when Dais was seventeen years old; (2) two 1987 burglary,
second offenses to commercial buildings; and (3) two 1991 burglary,
second offenses to residential dwellings.
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a serious drug offense.” 18 U.S.C. § 924(e)(1). The definition of
the term “violent felony” for ACCA purposes includes “any crime
punishable by imprisonment for a term exceeding one year . . .,
that . . . is burglary . . . .” 18 U.S.C. § 924(e)(2)(B)(ii). In
Taylor v. United States, 495 U.S. 575, 598-99 (1990), “burglary”
for ACCA purposes has been limited to “generic” burglary, defined
as the “unlawful or unprivileged entry into, or remaining in, a
building or structure with intent to commit a crime.” See also
United States v. Bowden, 975 F.2d 1080, 1083 (4th Cir. 1992). An
offense constitutes “burglary” for purposes of a § 924(e) sentence
enhancement if its statutory definition substantially corresponds
to “generic” burglary, or the charging paper and jury instructions
actually required the jury to find all the elements of generic
burglary in order to convict the defendant. Taylor, 495 U.S. at
602; Bowden, 975 F.2d at 1084.
We find that the South Carolina Burglary, Second, statute
applicable to Dais’ two 1991 burglary convictions to residential
dwellings clearly qualify as predicate § 924(e) offenses because
the South Carolina statutory definition3 substantially corresponds
to “generic” burglary. In addition, we find to be without merit
3
That statute provides as follows:
(A) A person is guilty of burglary in the second degree
if the person enters a dwelling without consent and
with intent to commit a crime therein.
S.C. Code Ann. § 16-11-312 (2003).
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Dais’ contention that the 1986 burglary offense conviction may not
properly be used as a predicate offense for ACCA enhancement merely
because he was a juvenile at the time of the offense. See, e.g.,
United States v. Burge, 407 F.3d 1183, 1190-91 (11th Cir. 2005);
United States v. Jones, 332 F.3d 688 (3d Cir. 2003); United States
v. Smalley, 294 F.3d 1030, 1033 (8th Cir. 2002); United States v.
Wright, 48 F.3d 254, 256 (7th Cir. 1995). Because Dais had at
least three qualifying prior offenses, the district court properly
sentenced him under the ACCA. Moreover, having determined that the
bases for the ACCA enhancement were appropriate, Dais’ claim that
the application of the ACCA violated the principles of Booker or
his Sixth Amendment rights is foreclosed by circuit precedent. See
United States v. Thompson, 421 F.3d 278, 286 (4th Cir. 2005), cert.
denied, 126 S. Ct. 1463 (2006); United States v. Cheek, 415 F.3d
349, 350 (4th Cir.), cert. denied, 126 S. Ct. 640 (2005).
Dais next asserts error in the district court’s denial of
a reduction for acceptance of responsibility. Broad discretion is
given to sentencing judges in determining whether to adjust for
acceptance of responsibility. USSG § 3E1.1, comment. (n.5). We
find no clear error with regard to the district court’s denial of
a reduction to Dais’ offense level based on Dais’ admission that he
wrote a letter to an alleged target of a federal investigation
demanding money from him, and thus undermining that investigation.
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United States v. Pauley, 289 F.3d 254, 261 (4th Cir. 2002)
(standard of review).
Dais next asserts, by counsel, that the district court
erred in denying his motion to compel specific performance of the
plea agreement to compel the Government to make a motion for a
downward departure on his behalf, as provided for in USSG § 5K1.1.
Given that Dais was not truthful in the information he supplied to
the Government, in violation of the terms of his plea agreement, we
find that the district court properly determined that the
Government was not in breach of the plea agreement and should not
be compelled to move for a USSG § 5K1.1 departure.
Dais has raised a number of issues pro se, but none are
meritorious.4 In addition to repeated challenges to his § 924(e)
enhancement, which we already have found to be without merit,5 Dais
has raised a number of claims of ineffective assistance of counsel.
Claims of ineffective assistance of counsel generally should be
asserted on collateral review rather than on direct appeal, unless
4
We note that many of the issues Dais raised pro se are
subject to plain error review, as Dais did not lodge specific
objections below. See United States v. Olano, 507 U.S. 725, 734
(1993). To meet the plain error standard: (1) there must be
error; (2) the error must be plain; and (3) the error must affect
substantial rights. Id. at 732.
5
To the extent that Dias’ claim that the state indictments on
which his ACCA enhancement was predicated were “invalid” is an
attempt to collaterally attack his prior convictions, we decline to
review such claim. See Custis v. United States, 511 U.S. 485(1994).
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proof of the claimed ineffective assistance is apparent on the face
of the record. United States v. King, 119 F.3d 290, 295 (4th Cir.
1997). As this record does not support Dais’ claims that counsel
was ineffective, we decline to address the claims in this appeal.
Dais also asserts district court error in relying solely
on the facts as set forth in the Presentence Investigation Report
(“PSR”). This claim likewise is without merit because not only is
the district court allowed to do so, see Thompson, 421 F.3d at 285,
but Dais has not identified how the error, assuming there was one,
affected his substantial rights, given that he was properly
classified as an armed career criminal.
Dais’ assertion that the district judge failed to give
him an opportunity to speak prior to the imposition of his sentence
is belied by the record in this case, as is his claim that his plea
agreement is invalid because it did not have the signature of the
Assistant United States Attorney on it.6 Moreover, we find no
reversible error in the district court’s failure to address at
sentencing all objections made to the PSR, given that the district
court considered all objections raised by Dais or his attorney at
sentencing and more is not required. Finally, Dais’ claim of
prosecutorial misconduct for allegedly failing to provide the
district court with copies of Dais’ indictment, plea agreement, and
6
His contention that the lack of the judge’s signature on the
plea agreement somehow invalidates it is specious.
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other records relative to his prior convictions is without merit,
as is his claim of judicial bias.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Dais’ conviction and sentence. We
grant Dais’ motions to amend his brief, and deny his motion to
relieve his attorney at this juncture.
This court requires that counsel inform her 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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