UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4920
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NICHOLAS OMAR TUCKER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., District
Judge. (CR-05-32)
Submitted: August 31, 2006 Decided: September 20, 2006
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Bradley Bennett, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. Jonathan Scott Gasser, Assistant United
States Attorney, Columbia, South Carolina; Elizabeth Jean Howard,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Nicholas Omar Tucker pled guilty to being a convicted
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (2000). On appeal, Tucker’s counsel filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious issues for appeal, but
questioning whether the district court erred in determining Tucker
was an armed career criminal. Tucker has filed a pro se
supplemental brief. Finding no reversible error, we affirm.
In considering whether the district court properly
designated Tucker as an armed career criminal, this court reviews
the district court’s legal determinations de novo and its factual
findings for clear error. United States v. Wardrick, 350 F.3d 446,
451 (4th Cir. 2003). Counsel’s argument on appeal that the
district court erred in sentencing him as an armed career criminal
based on facts not alleged in the indictment or found by a jury is
foreclosed by our recent decision in United States v. Thompson, 421
F.3d 278 (4th Cir. 2005), cert. denied, 126 S. Ct. 1463 (2006), in
which we held that sentencing courts may rely on prior convictions
to invoke the enhancement provided by § 924(e)(1), even if the
prior convictions were not charged in the indictment or found by a
jury, so long as no facts extraneous to the fact of conviction need
be decided. Id. at 282-83. We further found that whether the
three requisite prior convictions were committed on separate
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occasions, as the statute requires, was a fact inherent in the
prior convictions, rather than extraneous to them, and could be
determined by a judge based on appropriate judicial sources. Id.
at 285-86.
Tucker does not dispute the fact of the prior
convictions, but does argue that his two prior second-degree
burglary convictions are related and should be treated as one
offense. However, even assuming that Tucker’s two prior burglary
convictions are related and constitute one predicate offense,
Tucker still has three predicate offenses that qualify him as an
armed career criminal--convictions for assault and battery of a
high and aggravated nature, failure to stop for a blue light, and
the second-degree burglary conviction. We therefore conclude that
no constitutional error occurred in applying the armed career
criminal statute in this case.
We find Tucker’s remaining pro se claims to be without
merit. As required by Anders, we have examined the entire record
and find no other meritorious issues for appeal. Therefore,
finding no error, we affirm the judgment of the district court.
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 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
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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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