United States v. Allen

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4071
JAMES BENJAMIN ALLEN,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-01-233)
Submitted: June 24, 2002
Decided: July 11, 2002
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, John A. Dusenbery, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Angela H.
Miller, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
2 UNITED STATES v. ALLEN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
James Allen entered a guilty plea to one count of being a felon in
possession of a firearm. See 18 U.S.C.A. § 922(g)(1) (West 2000).
Because Allen’s three prior felony convictions constituted violent fel-
onies under the Armed Career Criminal Act of 1984, see 18 U.S.C.A.
§ 924(e)(1) (West 2000) ("ACCA"), the district court imposed a man-
datory minimum 180-month sentence. Allen appealed his sentence,
arguing imposition of the ACCA’s mandatory minimum sentence vio-
lated due process. We affirm.
This Court reviews de novo the legal determinations attendant to
the application of the ACCA. See United States v. Brandon, 247 F.3d
186, 188 (4th Cir. 2001). Once it is determined that a defendant’s
prior convictions qualify him for sentencing under the ACCA, the
sentencing court may only depart below the fifteen-year mandatory
minimum if the Government moves for such a departure based on the
defendant’s substantial assistance or if the defendant qualifies for
application of the "safety valve" provision. See United States v. Pil-
low, 191 F.3d 403, 407-08 (4th Cir. 1999); United States v. Wade, 936
F.2d 169, 171 (4th Cir. 1991).
Although the Sentencing Guidelines provide sentencing ranges
predicated on the gravity of a defendant’s offense and his criminal
history, when that calculus yields a sentencing range below the man-
datory minimum for an offense, the guidelines sentence becomes that
statutory minimum. See United States Sentencing Guidelines Manual
§ 5G1.1(b) (2000). Under § 924(e)(1), a fifteen-year mandatory mini-
mum sentence "shall" apply to all defendants convicted under
§ 922(g)(1) who have previously committed three or more qualifying
violent felonies. Because Allen had three such convictions, the man-
datory minimum sentence was properly imposed.
UNITED STATES v. ALLEN 3
Allen’s contention that there is a an arbitrary disparity between his
sentence under the ACCA and what it would otherwise be under the
Sentencing Guidelines is specious. First, Allen is ineligible for a
lesser sentence under the guidelines by operation of § 5G1.1(b) and
§ 924(e)(1). Second, Allen’s prior convictions were qualifying violent
felonies under § 924(e)(1), indicating he is not similarly situated to
every other defendant with three prior felony convictions. Because
Allen’s criminal history required a fifteen-year sentence under the
Sentencing Guidelines, we find Allen’s challenge to his sentence
unpersuasive.
Accordingly, Allen’s sentence is affirmed. We deny Allen’s motion
to appoint new appellate counsel or to file a pro se supplemental
brief.* 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
*In so doing, we note Allen’s appellate counsel did not file a brief pur-
suant to Anders v. California, 386 U.S. 738 (1967), and that Allen’s jus-
tification for filing a pro se supplemental brief is unpersuasive, see
United States v. Samuels, 970 F.2d 1312, 1315 (4th Cir. 1992).