UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4555
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JANSSEN LEE CLINKSCALES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:09-cr-00434-HFF-1)
Submitted: March 10, 2011 Decided: March 21, 2011
Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Janssen Lee Clinkscales pleaded guilty to possession
of a firearm and ammunition after having previously been
convicted of a crime punishable by a term of imprisonment
exceeding one year, in violation of 18 U.S.C. § 922(g)(1)
(2006). The district court sentenced Clinkscales to 180 months
of imprisonment and he now appeals. Appellate counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning whether the district court erred in finding that
Clinkscales was an armed career criminal. Clinkscales has filed
a pro se supplemental brief and a motion to supplement his pro
se brief raising the same issue. Finding no error, we affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Layton, 564 F.3d 330,
335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so
doing, we first examine the sentence for “significant procedural
error,” including “failing to calculate (or improperly
calculating) the [g]uidelines range, treating the [g]uidelines
as mandatory, failing to consider the [18 U.S.C.] § 3553(a)
[(2006)] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence . . . .” Gall, 128 S. Ct. at 597. Moreover, this
court reviews a district court’s determination that an offense
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is a violent felony under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e) (2006), de novo. United States v.
White, 571 F.3d 365, 367 (4th Cir. 2009). Finally, we then
“‘consider the substantive reasonableness of the sentence
imposed.’” United States v. Evans, 526 F.3d 155, 161 (4th Cir.
2008) (quoting Gall, 552 U.S. at 51). This court presumes on
appeal that a sentence within a properly calculated advisory
guidelines range is reasonable. United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551
U.S. 338, 346-56 (2007) (upholding presumption of reasonableness
for within guidelines sentence).
Under § 924(e), if a defendant violates § 922(g) and
has sustained three prior convictions for violent felonies
committed on occasions different from one another, the district
court must sentence the defendant to a minimum term of fifteen
years of imprisonment. 18 U.S.C. § 924(e)(1). A violent felony
is defined as
[A]ny crime punishable by imprisonment for a term
exceeding one year, . . . that--
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
to another[.]
18 U.S.C. § 924(e)(2)(B).
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In Taylor v. United States, 495 U.S. 575, 598-99
(1990), the Supreme Court held
that a person has been convicted of burglary for
purposes of a § 924(e) enhancement if he is convicted
of any crime, regardless of its exact definition or
label, having the basic elements of unlawful or
unprivileged entry into, or remaining in, a building
or structure, with intent to commit a crime.
Moreover, the Court further held that in order to determine
whether a prior conviction was for a violent felony under the
ACCA, a court may only “look to the fact of conviction and the
statutory definition of the prior offense.” Taylor, 495 U.S. at
602. The Court also determined, however, that there was an
exception to this categorical approach where a state statute
includes both an offense that would qualify as a violent felony
and an offense that would not. Id. In those cases, a court may
“go beyond the mere fact of conviction.” Taylor, 495 U.S. at
602.
Finally, in determining whether offenses were
committed on occasions different from one another, a district
court should consider
(1) whether the offenses arose in different
geographic locations; (2) whether the nature of each
offense was substantively different; (3) whether each
offense involved different victims; (4) whether each
offense involved different criminal objectives; and
(5) after the defendant committed the first-in-time
offense, did the defendant have the opportunity to
make a conscious and knowing decision to engage in the
next-in-time offense.
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United States v. Leeson, 453 F.3d 631, 640 (4th Cir. 2006)
(citing United States v. Letterlough, 63 F.3d 332, 335-37 (4th
Cir. 1995). We have thoroughly reviewed the record and the
relevant legal authorities and conclude that the district court
did not err in determining that Clinkscales had sustained at
least three prior convictions for violent felonies, committed on
occasions different from one another.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. Accordingly, we grant Clinkscales’ motion to file a
supplemental pro se brief and affirm the judgment of the
district court. This court requires that counsel inform
Clinkscales, in writing, of the right to petition the Supreme
Court of the United States for further review. If Clinkscales
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 Clinkscales.
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 in the decisional process.
AFFIRMED
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