United States v. Parker , 195 F. App'x 118 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4862
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES HAROLD PARKER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-791-TLW)
Submitted: July 28, 2006 Decided: August 21, 2006
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence, South
Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
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Unpublished opinions are not binding precedent in this circuit.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:
James Harold Parker, Jr., pled guilty to being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C.
§ 922(g)(1) (2000). The district court sentenced Parker to a
216-month term of imprisonment after finding that he was an armed
career criminal under 18 U.S.C.A. § 924(e) (West 2000 & Supp.
2006). Parker’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that, in his view, there
are no meritorious issues for appeal but questioning whether the
district court properly concluded that two of Parker’s predicate
offenses qualified as violent felonies and were committed on
occasions different from one another. Parker filed a pro se
supplemental brief, reasserting one of the claims raised by counsel
and contending that the district court erred in determining the
total offense level in the absence of the armed career criminal
designation. We affirm.
Counsel asserts that the district court erred in
designating Parker as an armed career criminal. Counsel first
suggests that Parker’s prior convictions in South Carolina for
common law robbery and second-degree burglary did not constitute
violent felonies, as defined by § 924(e)(2)(B). We find that the
definition of second-degree burglary in South Carolina falls within
the generic definition of burglary set forth in Taylor v. United
States, 495 U.S. 575 (1990). We also reject Parker’s contention
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that his prior conviction for common law robbery did not qualify as
a violent felony. As required by § 924(e)(2)(B)(i), the definition
of common law robbery in South Carolina includes violence as an
element. See Broom v. State, 569 S.E.2d 336, 337 (S.C. 2002)
(defining common law robbery).
Counsel also suggests that the district court erred in
finding that Parker’s second-degree burglary and common law robbery
convictions occurred on occasions different from one another. See
18 U.S.C.A. § 924(e)(1). In considering whether the district court
properly designated Parker as an armed career criminal, we review
the court’s legal determinations de novo and its factual findings
for clear error. United States v. Wardrick, 350 F.3d 446, 451 (4th
Cir. 2003). This court recently stated that determining whether
offenses were committed on occasions different from one another is
a question of law. United States v. Thompson, 421 F.3d 278, 285-86
(4th Cir. 2005), cert. denied, 126 S. Ct. 1463 (2006).
Our review of the record leads us to conclude that the
district court did not err in concluding that the challenged
predicate offenses were separate and distinct criminal episodes.
Parker robbed a gas station clerk of cash and cigarettes and, later
that night, broke into a used car dealership and took numerous sets
of car keys and a car. See United States v. Letterlough, 63 F.3d
332, 335-36 (4th Cir. 1995) (setting forth factors for court to
consider in determining whether offenses were committed on
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different occasions under § 924(e)); see also Thompson, 421 F.3d at
285 (collecting cases applying factors). Thus, we find that the
district court did not err in designating Parker as an armed career
criminal under § 924(e).
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.*
Accordingly, we affirm Parker’s 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
*
We decline to address Parker’s claims that the district court
erred in determining his total offense level in light of our
conclusion that Parker was properly sentenced as an armed career
criminal. We also reject Parker’s claim that he was sentenced
under a mandatory sentencing guidelines scheme because the district
court sentenced Parker after the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005).
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