UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4613
MICHAEL CLEOPHUS WITHERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-00-403)
Submitted: January 17, 2002
Decided: January 30, 2002
Before WILKINS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Benjamin H. White, Jr., United States Attorney, Angela H.
Miller, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
2 UNITED STATES v. WITHERS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael Cleophus Withers pleaded guilty to one count of posses-
sion of a firearm by a convicted felon, 18 U.S.C.A. § 922(g)(1) (West
2000). Withers was found to be an armed career criminal, 18
U.S.C.A. § 924(e)(1) (West 2000), and he was sentenced to 180
months in prison. Withers now appeals. His attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), in which he
claims that Withers was improperly sentenced as an armed career
criminal but states that there are no meritorious issues for review.
Withers was advised of his right to file a pro se supplemental brief.
He filed a pro se motion for appointment of counsel, identifying three
issues that he wishes to raise. The motion is construed as a pro se sup-
plemental brief. We affirm.
Both Withers’ counsel and Withers in his pro se brief claim that he
was improperly sentenced as an armed career criminal. A defendant
convicted of violating § 922(g)(1) who has three previous convictions
for serious drug offenses or violent felonies committed on occasions
different from one another is subject to a minimum prison term of fif-
teen years. 18 U.S.C. § 924(e)(1). Here, it is undisputed that Withers
had five previous North Carolina convictions for breaking and enter-
ing, in violation of N.C. Gen. Stat. § 14-54 (1999). We previously
have held that a conviction under § 14-54 constitutes a predicate vio-
lent felony for armed career criminal purposes. United States v. Bow-
den, 975 F.2d 1080, 1083-85 (4th Cir. 1992). The five offenses
occurred on January 9, 1995, at 1720 Freeway Drive and 1724 Free-
way Drive in Reidsville, North Carolina, and on January 11, 1995, at
408 Woodrow Street, 408-B Woodrow Street, and 215 Settle Street,
also in Reidsville.
Withers argues on appeal, as he did at sentencing, that the five state
crimes did not occur on occasions different from one another. We
UNITED STATES v. WITHERS 3
review this legal issue de novo. United States v. Williams, 187 F.3d
429, 431 (4th Cir. 1999). We agree with the district court that Withers
had at least three prior qualifying convictions (the January 9 offenses;
the January 11 Woodrow Street offenses; and the January 11 Settle
Street offense). See id. (listing factors that may be considered when
deciding if previous felonies were separate offenses).
The remaining claims raised in the pro se brief have no merit.
Because ineffective assistance of counsel does not conclusively
appear on the face of the record, Withers must raise this claim, if at
all, in a motion filed pursuant to 28 U.S.C.A. § 2255 (West Supp.
2001). See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
Further, authority to convene a grand jury existed.
In accordance with Anders, we have reviewed the entire record in
this case and find no reversible error. We therefore affirm Withers’
conviction and sentence. We deny counsel’s motion to withdraw at
this time. This court requires that counsel inform Withers in writing
of his right to petition the Supreme Court of the United States for fur-
ther review. If Withers 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. Coun-
sel’s motion must state that a copy of the motion was served on With-
ers.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process. The motion for
appointment of counsel is denied. The claim that there was no juris-
diction to convene a grand jury is frivolous.
AFFIRMED