United States v. Orr

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4246
MICHAEL JEROME ORR,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
James C. Cacheris, Senior District Judge.
(CR-98-322-MU)
Submitted: November 30, 2000
Decided: January 9, 2001
Before WILKINS and NIEMEYER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Harold J. Bender, BENDER & BARNETT, Charlotte, North Caro-
lina, for Appellant. Mark T. Calloway, United States Attorney, Ken-
neth M. Smith, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
2 UNITED STATES v. ORR
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael Jerome Orr appeals his convictions by a jury for his
employment of a firearm in the course of several drug trafficking
offenses and a related possession charge. See 18 U.S.C. § 924(c)
(1994); 18 U.S.C. § 922(x)(2) (1994). Orr was convicted for his role
in three separate robberies which left one man dead and two other
men with gunshot wounds. On appeal, Orr suggests that the district
court erred in imposing sentence on his second and third firearms
charges. Orr also contends that the district court committed reversible
error in denying his Fed. R. Crim. P. 29 motion for acquittal on those
two counts. Additionally, Orr suggests that the district court improp-
erly instructed the jury in describing the charges under § 924(c) as
"drug trafficking offenses" and failing to sua sponte instruct the jury
on a lesser included offense. Finding no merit to any of Orr’s conten-
tions, we affirm his conviction.
Orr first suggests that his conviction and sentence violate the
Supreme Court’s recent decision in Apprendi v. New Jersey, 120
S. Ct. 2348 (2000). In Jones v. United States, 526 U.S. 227 (1999),
the Court held that, under the federal carjacking statute, 18 U.S.C.A.
§ 2119 (West Supp. 2000), certain penalty-enhancing factors (the
existence of death or serious bodily injury) are additional elements of
the offense rather than sentencing factors. Id. at 251-52. In so finding,
the Court relied on the principle that "any fact (other than a prior con-
viction) that increases the maximum penalty for a crime must be
charged in an indictment, submitted to a jury, and proven beyond a
reasonable doubt." Jones, 526 U.S. at 243 n.6.
In this case, however, Orr’s increased penalties for the second and
third counts were applicable solely because of the existence of the
prior conviction on the employment of the firearm in the first count.
18 U.S.C. § 924(c)(1). Because there were "three separate uses and/or
UNITED STATES v. ORR 3
carryings of the weapons, [Orr] properly received five years for the
first use, twenty years consecutive for the second, and twenty years
consecutive for the third." United States v. Camps, 32 F.3d 102, 106
(4th Cir. 1994). The factor increasing Orr’s sentence on the second
and third offenses was the "prior conviction" the Supreme Court
explicitly exempted from the holding in Jones and Apprendi. See
Apprendi, 120 S. Ct. at 2362-63; Jones, 526 U.S. at 243 n.6. The dis-
trict court did not commit error with respect to Orr’s increased sen-
tences.
Orr’s remaining claims need not detain us for long. There was
ample evidence at trial, taken in the view most favorable to the Gov-
ernment, to demonstrate that the robberies Orr perpetrated were "drug
robberies" that would satisfy the "drug trafficking offense" element of
§ 924(c). See Fed. R. Crim. P. 29; Glasser v. United States, 315 U.S.
60, 80 (1942); United States v. Romer, 148 F.3d 359, 364 (4th Cir.
1998), cert. denied, 525 U.S. 1141 (1999). As for Orr’s claim that the
district court erred in instructing the jury, Orr has not demonstrated
that the court’s description of the offense charged in the indictment,
which tracked the statutory language of 18 U.S.C. § 924(c), was in
error. Neither has Orr shown plain error in the court’s failure to sua
sponte issue a lesser included offense instruction. United States v.
Hastings, 134 F.3d 235, 239 (4th Cir. 1998). There is no merit to
either of these contentions.
Accordingly, Orr’s conviction and sentence are affirmed. We dis-
pense 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