United States v. Tyson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4257

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES ELWOOD TYSON, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-03-113)

Submitted: October 7, 2004 Decided: October 13, 2004

Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Michael Francis Joseph, Assistant
United States Attorney, Angela Hewlett Miller, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

James Elwood Tyson, Jr., pled guilty to being a felon in

possession of firearm under 18 U.S.C. §§ 922(g)(1), 924(e)(1)

(2000), and was sentenced to 192 months of imprisonment. On

appeal, counsel has filed a brief under Anders v. California, 386

U.S. 738 (1967), alleging that there are no meritorious claims on

appeal, but raising the following issue: whether Tyson’s three

previous convictions were properly considered separate violent

crimes for purposes of sentencing him as an armed career criminal

under § 924(e)(1). Although informed of his right to do so, Tyson

has failed to file a pro se supplemental brief.

We find that Tyson’s three prior felonies were properly

counted for purposes of the enhancement because each conviction

arose out of a separate and distinct criminal episode, United

States v. Letterlough, 63 F.3d 332, 334-35 (4th Cir. 1995), and

because breaking and entering is considered a violent crime under

the enhancement. United States v. Bowden, 975 F.2d 1080, 1083-85

(4th Cir. 1992) (holding that breaking and entering under North

Carolina is considered a violent felony for career offender

purposes). Accordingly, this claim fails.

We have examined the entire record in this case, in

accordance with the requirements of Anders, and find no meritorious

issues for appeal. Accordingly, we affirm. We deny counsel’s

pending motion to withdraw. This court requires that counsel

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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 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 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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