United States v. Joshua Fuller

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4220
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA DALE FULLER,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, Chief District Judge. (1:17-cr-00044-MR-WCM-1)
Submitted: April 27, 2022 Decided: May 19, 2022
Before MOTZ and THACKER, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
ON BRIEF: William S. Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT LAW,
PLLC, Greensboro, North Carolina, for Appellant. Anthony Joseph Enright, Assistant
United States Attorney, Charlotte, North Carolina, Amy Elizabeth Ray, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Joshua Dale Fuller pled guilty, following a single robbery of a financial institution,
to bank robbery, in violation of 18 U.S.C. §§ 2, 2113(a) (Count 1); assault with a dangerous
weapon during bank robbery, in violation of 18 U.S.C. §§ 2, 2113(d) (armed bank robbery)
(Count 2); and use and discharge of a firearm during the commission of a crime of violence,
in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(iii) (Count 3). The district court denied
Fuller’s motion for a downward variance and imposed concurrent 46-month sentences on
Counts 1 and 2 and a consecutive 120-month sentence on Count 3, for a total term of 166
months’ imprisonment. Fuller timely appealed from the amended criminal judgment, and
his counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
there were no meritorious grounds for appeal but questioning whether the sentence
imposed was substantively reasonable.
After independently reviewing the record pursuant to Anders, we identified a
potentially meritorious issue, and accordingly directed the parties to provide supplemental
briefing addressing that issue: whether the conviction and concurrent sentence imposed on
the bank robbery charged in Count 1 were multiplicitous in light of the conviction and
sentence imposed on the armed bank robbery charged in Count 2. After Fuller filed his
supplemental brief, the Government moved to remand this case to the district court with
instructions to vacate Fuller’s conviction on Count 1. Fuller opposes the limited remand
sought by the Government, instead asserting that the case should be remanded to the district
court for a determination of whether to dismiss Count 1 or Count 2, and for resentencing.
For the reasons that follow, we grant the Government’s motion to remand, but only to the
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extent it seeks remand for the entry of an amended criminal judgment. We affirm Fuller’s
convictions on Counts 2 and 3, direct that his conviction on Count 1 be merged into the
conviction for Count 2, vacate the sentence on Count 1, and remand for the entry of an
amended judgment reflecting this disposition.
Anders counsel questions whether, in light of Fuller’s age, personal history, and lack
of a criminal record, his 166-month sentence is excessive. We review a criminal
“sentence[]—whether inside, just outside, or significantly outside the Guidelines range—
under a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41
(2007). We “first ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range, . . . failing to
consider the [18 U.S.C.] § 3553(a) factors, . . . or failing to adequately explain the chosen
sentence.” Id. at 51. If there is no significant procedural error, then we consider the
sentence’s substantive reasonableness. Id.; see United States v. Provance, 944 F.3d 213,
218 (4th Cir. 2019). “Any sentence that is within or below a properly calculated Guidelines
range is presumptively reasonable.” United States v. White, 810 F.3d 212, 230 (4th Cir.
2016) (internal quotation marks omitted). Having carefully reviewed the record, we
conclude that the district court properly calculated the advisory Guidelines ranges, gave
the parties the opportunity to argue for an appropriate sentence, and sufficiently explained
the chosen sentence. Fuller, therefore, has failed to rebut the presumption of
reasonableness afforded his within-Guidelines-range sentence.
However, because it is well established that § 2113(a) is a lesser-included offense
of § 2113(d), United States v. Whitley, 759 F.2d 327, 331 (4th Cir. 1985) (en banc); see
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United States v. Gaddis, 424 U.S. 544, 547 (1976) (recognizing “merger” of convictions
under § 2113(a) and § 2113(d) for same robbery), we find that Fuller’s bank robbery
conviction must be merged into the armed bank robbery conviction for sentencing
purposes. The district court therefore erred in imposing a separate 46-month concurrent
sentence for bank robbery. See United States v. Jones, 204 F.3d 541, 544 (4th Cir. 2000)
(concluding that defendant’s drug possession conviction should have been merged into
conviction for possession with intent to distribute and, therefore, vacating the sentence
imposed for the lesser-included offense of possession).
In accordance with Anders, we have reviewed the entire record in this case and have
found no other meritorious grounds for appeal. Because we conclude that Fuller’s bank
robbery conviction should have been merged into the armed bank robbery conviction, we
vacate the sentence for Count 1. We affirm Fuller’s remaining convictions and sentence,
and we remand for the entry of an amended judgment reflecting this disposition. See
United States v. Midgett, 488 F.3d 288, 302 (4th Cir. 2007) (vacating sentence imposed on
lesser-included bank robbery conviction and “remand[ing] for the entry of an amended
judgment that reflects this disposition”).
This court requires that counsel inform Fuller, in writing, of the right to petition the
Supreme Court of the United States for further review. If Fuller 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 representation. Counsel’s motion must state that
a copy thereof was served on Fuller. We dispense with oral argument because the facts
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and legal contentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND
REMANDED
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