United States v. Paul Dudley, Jr. ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4037
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAUL DUDLEY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Thomas D. Schroeder, Chief District Judge. (1:20-cr-00412-TDS-1)
Submitted: January 31, 2023 Decided: March 22, 2023
Before NIEMEYER and RUSHING, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Benjamin David Porter, MORROW PORTER VERMITSKY & TAYLOR
PLLC, Winston-Salem, North Carolina, for Appellant. Kenneth A. Polite, Jr., Assistant
Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Thomas E. Booth,
Appellate Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Sandra J. Hairston, United States Attorney, Angela H. Miller, Assistant
United States Attorney, Tanner L. Kroeger, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Paul Dudley, Jr., pled guilty to conspiracy to commit Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a), and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). The district court deemed Dudley an armed career
criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and sentenced
him to the statutory mandatory minimum term of 180 months’ imprisonment. On appeal,
Dudley contends that the court erred in sentencing him as an armed career criminal because
he did not commit the qualifying offenses on three different occasions. We affirm the
district court’s judgment.
We review de novo a district court’s legal determinations regarding the applicability
of the ACCA. United States v. Hope, 28 F.4th 487, 493 (4th Cir. 2022). Under the ACCA,
a defendant is subject to a mandatory minimum 15-year term of imprisonment if he “has
three previous convictions . . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). We have
defined occasions as “those predicate offenses that can be isolated with a beginning and an
end—ones that constitute an occurrence unto themselves.” United States v. Thompson,
421 F.3d 278, 285 (4th Cir. 2005) (internal quotation marks omitted). And we have
identified several factors for district courts to consider in determining if offenses were
committed on different occasions, including the location of the offenses, the nature,
objectives, and victims of each offense, and “whether the defendant had the opportunity
after committing the first-in-time offense to make a conscious and knowing decision to
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engage in the next-in-time offense.” United States v. Linney, 819 F.3d 747, 751
(4th Cir. 2016) (internal quotation marks omitted).
The Supreme Court recently identified similar factors as relevant in considering
whether offenses were committed on the same occasion:
Offenses committed close in time, in an uninterrupted course of conduct, will
often count as part of one occasion; not so offenses separated by substantial
gaps in time or significant intervening events. Proximity of location is also
important; the further away crimes take place, the less likely they are
components of the same criminal event. And the character and relationship
of the offenses may make a difference: The more similar or intertwined the
conduct giving rise to the offenses—the more, for example, they share a
common scheme or purpose—the more apt they are to compose one
occasion.
Wooden v. United States, 142 S. Ct. 1063, 1071 (2022). The Court noted that courts of
appeals “have nearly always treated offenses as occurring on separate occasions if a person
committed them a day or more apart, or at a significant distance.” Id. (internal quotation
marks omitted).
The district court correctly concluded that Dudley committed his offenses on three
different occasions. Three days passed between Dudley’s first cocaine distribution offense
and his next offenses (a second distribution and a related offense for distribution near a
school or park), and then he committed another drug offense months later. The lack of
temporal proximity in this case is sufficient to separate the offenses. Moreover, that
Dudley had multiple days to reflect on his first offense conduct before selling drugs a
second time further distinguishes those crimes. Finally, Dudley suggests that the
challenged series of offenses does not satisfy the spirit or intention of the ACCA because
he committed the offenses at ages 16 and 17. However, neither this court nor the Supreme
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Court has identified age as a factor to be considered when determining whether offenses
occurred on the same occasion for purposes of the ACCA. See, e.g., Wooden, 142 S. Ct.
at 1071.
Therefore, we affirm the district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
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