United States v. Sheppard

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4741
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRADLEY SHANE SHEPPARD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., District
Judge. (CR-04-420)
Submitted: August 24, 2005 Decided: November 2, 2005
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Bradley Shane Sheppard pled guilty to one count of
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2000). He was sentenced as an armed career
criminal to 180 months in prison. See 18 U.S.C. § 924(e)(1)
(2000); United States Sentencing Guidelines § 4B1.4 (2003).
Sheppard now appeals. His attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), raising one claim but
stating that, in his opinion, there are no meritorious issues for
review. Upon notification of his right to do so, Sheppard filed a
pro se supplemental brief. We affirm.
Section 924(e)(1) provides in relevant part that “[i]n
the case of a person who violates section 922(g) . . . and has
three prior convictions . . . for a violent felony or a serious
drug offense, or both, committed on occasions different from one
another, such person shall be . . . imprisoned not less than
fifteen years.”1 Counsel’s Anders brief discusses whether Sheppard
had been convicted of the three predicate violent felonies, and
1
Recently, we held that a district court’s finding that a
defendant had qualifying felony convictions that supported an armed
career criminal designation does not violate United States v.
Booker, 125 S. Ct. 738 (2005). See United States v. Cheek, 415
F.3d 349 (4th Cir. 2005); see also United States v. Robinson, 404
F.3d 850, 862 (4th Cir. 2005) (holding that “Booker did nothing to
alter the rule that judges cannot depart below a statutorily
provided minimum sentence.”)
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Sheppard argues the point extensively in his pro se supplemental
brief.
The record indicates the requisite three predicate
violent felonies: a 1995 conviction for burglary of a dwelling, a
separate 1995 conviction for burglary of a dwelling, and a 2002
conviction for assault and battery of a high and aggravated nature.
Sheppard asserts that the burglary convictions are non-violent.
However, burglary of a dwelling satisfies the requirement of the
statute. See 18 U.S.C.A. § 924(e)(2)(B)(ii); Taylor v. United
States, 495 U.S. 575, 599 (1990). Therefore, we hold that, for the
purpose of the armed career criminal determination, Sheppard had
the necessary three predicate violent felony convictions.2
Sheppard also argues that he was denied effective
assistance of counsel during his plea and sentencing. Ineffective
assistance claims are not generally addressed on direct appeal
unless it appears conclusively from the record that the appellant
received ineffective assistance of counsel. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Such claims
generally should be raised by a motion under 28 U.S.C. § 2255(2000). Id.2
Sheppard also contends that insufficient evidence exists to
support the base offense of possession of a firearm as a felon,
arguing that the weapon he possessed did not affect interstate
commerce; however, we find that he acknowledged that the weapon did
affect interstate commerce during the guilty plea hearing.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Sheppard’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 petition be filed, but
counsel believe that such 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
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