UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4252
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY NEAL WRIGHT,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:06-cr-00021-jlk)
Submitted: October 22, 2007 Decided: November 13, 2007
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry Gott, Danville, Virginia, for Appellant. John L. Brownlee,
United States Attorney, Jean B. Hudson, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Wright appeals the district court’s judgment
entered pursuant to his guilty plea to one count of possessing a
firearm after having been convicted of a felony, in violation of 18
U.S.C. §§ 922(g) (2000) and 924(e) (West 2000 and Supp. 2007).
Prior to Wright’s sentencing, the probation office prepared a
presentence investigation report, which classified Wright as an
armed career criminal pursuant to 18 U.S.C. § 924(e), based on his
four prior breaking and entering convictions.
On appeal, Wright raises two alleged errors. First, he
contends the application of the Armed Career Criminal Act to the
facts in his case violated his Eighth Amendment protections against
cruel and unusual punishment. Second, Wright alleges the district
court erred in failing to determine whether his breaking and
entering convictions qualified as burglaries within the meaning of
18 U.S.C. § 924(e)(2) and were thus predicate offenses for purposes
of application of the armed career criminal enhancement.
Title 18, section 924(e) of the United States Code
provides for a fifteen year mandatory minimum sentence for an
individual who has previously been convicted in any court of a
crime punishable by imprisonment of a year or more, who possesses
a firearm, and has three prior convictions for violent felonies or
serious drug offenses. 18 U.S.C.A. §§ 922(g) and 924(e). On
appeal, Wright argues that the § 924(e) enhancement he received
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violated the Eighth Amendment because his predicate convictions
occurred fifteen years prior to the current offense when he was
eighteen years old and because “he does not fit the profile of a
recidivist as he had not been at liberty between the qualifying
felonies” to demonstrate he was a changed man. Wright’s first
argument is without merit.
The plain language of § 924(e) does not require an
intervening arrest or period of incarceration to impose the fifteen
year enhanced penalty but imposes the penalty on anyone who has
committed three predicate offenses “on occasions different from one
another.” 18 U.S.C. § 924(e). This court has already determined
that predicate offenses occur on “occasions different from one
another” if each prior conviction arises out of a separate and
distinct criminal episode. See United States v. Letterlough, 63
F.3d 332, 335 (4th Cir. 1995). There is no dispute that these
requirements are met in this case. Finally, to the extent that
Wright raises a general Eighth Amendment challenge to § 924(e),
this court has already determined that § 924(e) is neither
disproportionate to the offense punished nor cruel and unusual
punishment and thus, does not violate the Eighth Amendment. See
United States v. Presley, 52 F.3d 64, 68 (4th Cir. 1995); United
States v. Etheridge, 932 F.2d 318, 323 (4th Cir. 1991); United
States v. Crittendon, 883 F.2d 326, 331 (4th Cir. 1989).
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Wright also avers the Government failed to establish that
his prior breaking and entering convictions met the definition of
burglary as used in § 924(e) and therefore did not qualify as
predicate “violent felonies” under § 924(e). As Wright failed to
maintain this claim in the court below,* his argument on appeal is
reviewed for plain error. Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 732 (1993). Plain error review requires the
defendant to establish that: (1) there was error; (2) the error
was “plain;” and (3) the error affected the defendant’s substantial
rights. Olano, 507 U.S. at 732. Even if the defendant makes this
required showing, “Rule 52(b) leaves the decision to correct the
forfeited error within the sound discretion of the court of
appeals, and the court should not exercise that discretion unless
the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. (quoting United States v.
Young, 470 U.S. 1, 15 (1985)(internal quotations omitted)).
Wright’s failure to timely object to the classification
of his prior offenses as violent felonies is fatal to his claim.
Contrary to Wright’s contention, the district court was not
*
Although Wright’s counsel apparently questioned whether
Wright’s prior offenses were properly classified by the probation
officer in the presentence report as violent felonies, this issue
was not pursued at sentencing. Accordingly, because the matter was
not pursued in open court when Wright and his counsel were afforded
the opportunity to challenge the findings in the presentence
report, we deem Wright’s objection to the classification of his
prior offenses as violent felonies to have been abandoned.
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required to delve, sua sponte, into the circumstances surrounding
Wright’s prior convictions, but rather was entitled to rely on
undisputed information in the presentence report that bore “the
earmarks of derivation from [Shepard v. United States, 544 U.S. 13
(2005)] approved sources such as the indictments and state-court
judgments from [defendant’s] prior convictions.” See United States
v. Thompson, 421 F.3d 278, 285 (4th Cir. 2005). Accordingly, we
affirm the judgment of the district court. 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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