United States v. Duckworth, 4th Cir. (2010)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 10-4157
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
HAROLD RAY DUCKWORTH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., District Judge. (1:09-cr-00161-WO-5)
Submitted:
November 30, 2010
Decided:
December 27, 2010
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,

Winston-Salem, North Carolina, for Appellant.
Terry Michael
Meinecke, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold R. Duckworth appeals his convictions and the
180-month sentence of imprisonment imposed by the district court
under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)
(2006), following a guilty plea to felon in possession of a
firearm
in
violation
of
18
U.S.C.
922(g)
(2006),
and
possession of stolen firearms in violation of 18 U.S.C. 922(j)

(2006).
Duckworths
counsel
has
filed
brief
pursuant
to
Anders v. California, 386 U.S. 738 (1967), asserting, in his

opinion,
there
are
no
meritorious
issues
for
appeal,
but
questioning whether the district court erred in finding that

Duckworths
four
previous
drug
convictions
were
committed
on
occasions different from one another for purposes of imposing

the
enhanced
supplemental
sentence.
brief
Duckworth
claiming
that
has
his
filed
trial
pro
counsel
ineffective and he received an unconstitutional sentence.
se
was
We
affirm.
We
review
Duckworths
sentence
for
reasonableness,
using an abuse of discretion standard of review.

States, 552 U.S. 38, 51 (2007).
requires
us
to
ensure
that
Gall v. United
The first step in this review
the
district
court
committed
no
significant procedural error, such as improperly calculating the

advisory sentencing guidelines range.
526
F.3d
155,
161
(4th
Cir.
2008).
2
United States v. Evans,

We
then
consider
the
substantive reasonableness of the sentence, taking into account

the totality of the circumstances.
Although
our
applies
determination
involves
review
of
Gall, 552 U.S. at 51.
whether
for
the
enhancement
error,
Duckworths
procedural
ACCA
assertion that his four previous convictions were not committed

on
occasions
statutory
different
from
interpretation
one
another
is
we
consider
de
novo.
that
question
of
United
States v. Carr, 592 F.3d 636, 639 n.4 (4th Cir. 2010).
Under
criminal
and
the
ACCA,
subject
to
defendant
is
fifteen-year
an
armed
career
mandatory
minimum
punishment if he violates 18 U.S.C. 922(g)(1), and has three

prior convictions for violent felonies or serious drug offenses,
committed on occasions different from one another.
18 U.S.C.
924(e)(1); USSG 4B1.4(a).
Convictions occur on occasions
different
each
from
one
another
if
of
the
prior
convictions
arose out of separate and distinct criminal episodes.

States
v.
(internal
Letterlough,
quotation
63
marks
F.3d
332,
omitted).
335
In
(4th
other
United
Cir.
words,
1995)
the
predicate ACCA offenses must be those that can be isolated with

a beginning and an end.
388
(4th
Cir.
1998)
United States v. Hobbs, 136 F.3d 384,
(internal
quotation
marks
and
citation
omitted).
To determine whether previous convictions arose out of
separate
and
distinct
criminal
3
episodes,
we
consider:
(1)
whether the offenses arose in different geographic locations;

(2)
whether
the
nature
of
each
offense
was
substantively
different; (3) whether each offense involved different victims;

(4) whether each offense involved different criminal objectives;
and (5) after the defendant committed the first-in-time offense,
did the defendant have the opportunity to make a conscious and
knowing decision to engage in the next-in-time offense.
United
States v. Leeson, 453 F.3d 631, 640 (4th Cir. 2006) (citing
Letterlough, 63 F.3d at 335-37).
We may apply these factors
independently or in conjunction, and if any one of the factors

has
strong
extended
presence,
criminal
it
enterprise
distinct episodes.
can
dispositively
into
series
of
segregate
an
separate
and
United States v. Williams, 187 F.3d 429,
431 (4th Cir. 1999) (quoting Letterlough, 63 F.3d at 336).

Our review of the record leads us to conclude that the
district
court
properly
found
that
Duckworths
four
previous
1989 North Carolina drug convictions were committed on occasions

different
from
one
another,
and
properly
separate offenses for purposes of the ACCA.
counted
them
as
We also conclude
that the district court was correct in finding that each one of
Duckworths drug convictions qualified as a predicate offense,
subjecting
him
to
180-month
mandatory
imprisonment.
minimum
sentence
of
Further,
the
district
court
properly
calculated
Duckworths guidelines range, considered the relevant 18 U.S.C.

3553(a)
(2006)
based
the
on
reasons
for
factors,
facts
the
made
presented,
chosen
sentence
an
and
in
individualized
assessment
adequately
explained
open
sufficient
court
the
to
satisfy us that it considered the parties arguments and had a

reasoned
basis
for
its
decision.
Thus,
we
find
that
the
district court did not procedurally err in imposing the 180month sentence of imprisonment.
substantively unreasonable.
which
is
what
[Duckworth]
Nor was the sentence imposed
A statutorily required sentence,

received,
is
per
se
reasonable.
United States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008).
Therefore,
Duckworths
sentence
is
both
procedurally
and
substantively reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. *
sentence.
We
therefore
affirm
Duckworths
convictions
and
This court requires that counsel inform Duckworth in
We decline to consider on direct appeal Duckworths claim

that his trial counsel provided ineffective representation. To
allow for adequate development of the record, ineffective
assistance of counsel claims must ordinarily be pursued in
appropriate post-conviction proceedings.
See United States v.
Benton, 523 F.3d 424, 435 (4th Cir. 2008). Because ineffective
assistance is not conclusively established by the present
record, Duckworth must pursue this claim on collateral review.
writing of his right to petition the Supreme Court for further

review.
If Duckworth requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then

counsel
may
move
representation.
in
this
court
for
leave
to
withdraw
from
Counsels motion must state that a copy thereof
was served on Duckworth.

We dispense with oral argument because the facts and
legal
before
contentions
the
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

November 30, 2010

December 27, 2010

Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,

Unpublished opinions are not binding precedent in this circuit.

possession of stolen firearms in violation of 18 U.S.C. 922(j)

Anders v. California, 386 U.S. 738 (1967), asserting, in his

questioning whether the district court erred in finding that

occasions different from one another for purposes of imposing

ineffective and he received an unconstitutional sentence.

using an abuse of discretion standard of review.

The first step in this review

significant procedural error, such as improperly calculating the

United States v. Evans,

substantive reasonableness of the sentence, taking into account

Gall, 552 U.S. at 51.

assertion that his four previous convictions were not committed

punishment if he violates 18 U.S.C. 922(g)(1), and has three

924(e)(1); USSG 4B1.4(a).

Convictions occur on occasions

arose out of separate and distinct criminal episodes.

predicate ACCA offenses must be those that can be isolated with

United States v. Hobbs, 136 F.3d 384,

whether the offenses arose in different geographic locations;

different; (3) whether each offense involved different victims;

We may apply these factors

independently or in conjunction, and if any one of the factors

United States v. Williams, 187 F.3d 429,

431 (4th Cir. 1999) (quoting Letterlough, 63 F.3d at 336).

1989 North Carolina drug convictions were committed on occasions

separate offenses for purposes of the ACCA.

Duckworths guidelines range, considered the relevant 18 U.S.C.

satisfy us that it considered the parties arguments and had a

Nor was the sentence imposed

A statutorily required sentence,

This court requires that counsel inform Duckworth in

We decline to consider on direct appeal Duckworths claim

writing of his right to petition the Supreme Court for further

If Duckworth requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

Counsels motion must state that a copy thereof

was served on Duckworth.

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