UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4687
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYRENCE DENARD DOWNEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00109-NCT-1)
Submitted: May 5, 2011 Decided: May 26, 2011
Before GREGORY, SHEDD, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eric H. Imperial, LAW OFFICES OF ERIC H. IMPERIAL, Washington,
D.C., for Appellant. Michael Francis Joseph, Terry Michael
Meinecke, Assistant United States Attorneys, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyrence Denard Downey was found guilty after a jury
trial of three offenses relating to the July 2008 robbery of the
Happy China Buffet in Randleman, North Carolina: interference
with commerce by robbery, in violation of 18 U.S.C. § 1951(a)
(2006); brandishing a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii), (c)(1)(C)(ii) (2006);
and possession of a firearm by a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). Downey then
entered a plea, pursuant to North Carolina v. Alford, 400 U.S.
25 (1970), to one count of interference with commerce, in
violation of 18 U.S.C. § 1951(a), for the May 2008 robbery of
the China Café in Kernersville, North Carolina.
Downey’s appellate counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he states
that he finds no meritorious issues for appeal. Counsel
questions whether the sentencing court erred in denying Downey’s
objection to the assignment of two criminal history points for
each of Downey’s two previous assault convictions. We review
such a legal conclusion de novo. United States v. Manigan, 592
F.3d 621, 626 (4th Cir. 2010). We find no error: although both
of Downey’s assault convictions arose from the same underlying
incident, the two assault charges were brought via separate
instruments and sentenced on different days. Thus, the
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convictions were properly counted separately for the assessment
of criminal history points. U.S. Sentencing Guidelines Manual
§ 4A1.2(a)(2) (2009).
Downey, through a pro se filing, raises several
supplemental arguments. We have reviewed these contentions and
do not find them meritorious. Downey’s trial conviction was
supported by substantial evidence, and the district court did
not err in its evidentiary rulings.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Downey’s convictions and sentence. This
court requires that counsel inform Downey, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Downey 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 Downey.
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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