United States v. James W. Beasley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4554
JAMES WILLIAM BEASLEY, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-97-988)
Submitted: February 23, 1999
Decided: April 13, 1999
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. E. Jean Howard, OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
James William Beasley, Jr., was found guilty of one count of pos-
session of a firearm in violation of 18 U.S.C.A.§ 922(g) (West Supp.
1998). The district court imposed a 120-month sentence. Beasley's
attorney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967). Counsel states that there are no meritorious grounds
for appeal, but raises the following issues: (1) whether Beasley was
subjected to double jeopardy in violation of the Fifth Amendment
because he was also convicted in state court of an offense relating to
the same firearm; (2) whether the trial court improperly denied Beas-
ley's motion for judgment of acquittal pursuant to Rule 29 of the Fed-
eral Rules of Criminal Procedure; and (3) whether the district court
erred in sentencing Beasley to 120 months under the sentencing
guidelines. Although informed of his right to file a supplemental
brief, Beasley has not done so. Because our review of the record
reveals no reversible error, we affirm.
In October 1997 a federal grand jury indicted Beasley on one count
of violating 18 U.S.C.A. § 922(g), and Beasley elected a jury trial. At
trial, the Government presented evidence from which a jury could
reasonably conclude that: Beasley knowingly possessed a firearm on
June 5, 1997; he had previously been convicted of a crime with a
maximum sentence in excess of one year; and the firearm had been
in and affected interstate commerce. At the close of the Government's
evidence Beasley moved for a judgment of acquittal pursuant to Rule
29, and the district court denied the motion. Thereafter, the defense
rested without calling any witnesses. The jury returned a verdict of
guilty.
In his presentence report, the probation officer found that Beasley
possessed a Lorcin .25 caliber automatic pistol. He further found that
Beasley had two prior convictions for crimes of violence.1 Beasley's
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1 The presentence report indicates that on August 29, 1991, Beasley
was convicted of conspiracy to commit a robbery that occurred on May
11, 1991. It further describes that on August 29, 1991, Beasley was also
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base offense level was set at 24. See U.S. Sentencing Guidelines
Manual § 2K2.1(a)(2) (1997). However, because the firearm involved
in the offense had been stolen, he was subject to an increase of two
points for the specific offense characteristic. See USSG
§ 2K2.1(b)(4). Beasley's base offense level was therefore enhanced to
26. Combined with his criminal offense category of V,2 the guidelines
yielded a range of 110 to 137 months. However, the provisions of sec-
tion 922(g) limit a sentencing court to a statutory maximum of 120
months. Therefore, the district court imposed a sentence of 120
months.
In his Anders brief, Beasley questions whether the district court
violated the Fifth Amendment's guarantee against double jeopardy
because the state had already prosecuted him on the ground that the
firearm in question was stolen property. Because the state and federal
charges did not share the same elements of proof, see Blockburger v.
United States, 284 U.S. 299 (1932), nor were they prosecuted by the
same sovereign, see Abbate v. United States, 359 U.S. 187 (1959), the
subsequent federal conviction does not implicate the Fifth Amend-
ment.
Beasley also questions whether the district court correctly denied
his motion for judgment of acquittal. We review the denial of a Rule
29 motion de novo. See United States v. Romer , 148 F.3d 359, 364
(4th Cir. 1998). At trial the Government introduced evidence that
Beasley was arrested on an outstanding arrest warrant, and a search
incident to arrest revealed a pistol in his pants pocket. The Govern-
ment's evidence also supported findings that the pistol found in Beas-
ley's possession had moved in interstate commerce and that Beasley
had been convicted of at least one prior crime punishable by impris-
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convicted of a separate count of attempted common law robbery that
occurred on December 23, 1990. Because these convictions arose out of
separate factual circumstances and there is no evidence that they were
consolidated at sentencing, the district court properly considered them as
unrelated convictions. See United States v. Allen, 50 F.3d 294 (4th Cir.
1995).
2 The presentence report assigned Beasley a total of ten criminal history
points.
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onment for a term exceeding one year. Finally, the Government
adduced evidence that Beasley had not been pardoned or had his civil
rights otherwise restored prior to his arrest. Accordingly, because a
reasonable jury could have found that the Government proved every
element beyond a reasonable doubt, the district court acted correctly
in denying Beasley's Rule 29 motion. See id.Lastly, Beasley claims that the district court erred in calculating his
sentence at 120 months, the statutory maximum for the offense. He
cites to no specific error, and based on our review of the application
of the sentencing guidelines, we have found none. Therefore, we find
that the district court properly calculated Beasley's sentence.
We have examined the entire record in this case in accordance with
the requirements of Anders, and find no meritorious issues for appeal.
The 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 further representation.
Counsel's motion must state that a copy thereof was served on the cli-
ent.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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