UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4296
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERALD GRAY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:06-cr-00165-BO-1)
Submitted: March 12, 2009 Decided: April 6, 2009
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE,
Raleigh, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerald Gray pled guilty pursuant to a written plea
agreement to possession of a firearm by a felon, in violation of
18 U.S.C. § 922(g)(1) (2006). The district court determined the
statutory conditions set forth in the Armed Career Criminal Act
(“ACCA”), see 18 U.S.C. § 924(e) (2006), were satisfied and
sentenced Gray to the statutory mandatory minimum of 180 months’
imprisonment. Finding no error, we affirm.
Counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he asserts there are
no meritorious issues for appeal but questions whether the
manner in which prior offenses are counted under the ACCA and
the career offender guideline provision invites unwarranted
sentencing disparity. The Government filed a responding brief,
stating counsel’s argument is foreclosed by this court’s
precedent. Gray was notified of his right to file a pro se
supplemental brief, but he did not do so.
Initially, we conclude Gray was properly classified as
an armed career criminal. Gray’s criminal history includes ten
offenses involving breaking and entering homes. See United
States v. Bowden, 975 F.2d 1080, 1085 (4th Cir. 1992)
(determining North Carolina breaking or entering statute
qualifies as predicate conviction under ACCA). These ten
offenses, which were each charged separately, occurred on eight
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different dates, in different geographical locations, and
involved different victims. See United States v. Thompson, 421
F.3d 278, 284-86 (4th Cir. 2005) (explaining ACCA’s requirement
that prior convictions be “committed on occasions different from
one another”); United States v. Williams, 187 F.3d 429, 431 (4th
Cir. 1999) (same). Furthermore, the fact that nine of the
offenses were consolidated for sentencing does not merge the
offenses under the ACCA as “[n]othing in § 924(e) or the
Guidelines suggests that offenses must be tried or sentenced
separately in order to be counted as separate predicate
offenses.” United States v. Samuels, 970 F.2d 1312, 1315 (4th
Cir. 1992). Therefore, Gray clearly has the requisite number of
predicate convictions required for enhancement under the ACCA.
Counsel, however, asserts that the manner in which
convictions are counted under the ACCA creates an unwarranted
sentencing disparity from those individuals enhanced under the
career offender guideline provision. This argument is without
merit as the ACCA and career offender guideline provision, while
both addressing recidivist offenders, have different purposes.
The ACCA was enacted to provide an increased statutory mandatory
minimum for defendants who violate § 922(g)(1) and have three
prior convictions “for a violent felony or a serious drug
offense, or both.” 18 U.S.C. § 924(e)(1). This contrasts with
the career offender guideline provision, which implements the
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directive of 28 U.S.C. § 944(h) (2006), requiring the Sentencing
Commission to specify terms of imprisonment at or near the
applicable statutory maximum for defendants who have been
convicted of a crime of violence or a controlled substance
offense and have two or more prior convictions for crimes of
violence or controlled substance offenses. U.S. Sentencing
Guidelines Manual § 4B1.1, comment. (backg’d) (2006). Thus, any
disparity in sentencing among armed career criminals and career
offenders does not implicate 18 U.S.C. § 3553(a)(6) (2006)
(addressing “need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty
of similar conduct”).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, 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 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
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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