United States v. Anthony Stokes

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5186

UNITED STATES OF AMERICA,

Plaintiff ─ Appellee,

v.

ANTHONY ROBERT STOKES,

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-00355-NCT-1)

Submitted: June 30, 2011 Decided: July 5, 2011

Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Warren Sparrow, Winston-Salem, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Paul A. Weinman, Assistant
United States Attorney, Winston-Salem, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Anthony Robert Stokes pled guilty to one count of

possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1) (2006). He now appeals his 188-month

sentence imposed by the district court under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (2006), asserting that

the district court erred in finding that his three prior

convictions under North Carolina law for breaking and entering

were committed on occasions different from one another for

purposes of imposing the enhanced sentence. Finding no error,

we affirm.

We review Stokes’ sentence for reasonableness, using

an abuse of discretion standard of review. Gall v. United

States, 552 U.S. 38, 51 (2007). The first step in this review

requires us to ensure that the district court committed no

significant procedural error, such as improperly calculating

the advisory sentencing Guidelines range. United States v.

Evans, 526 F.3d 155, 161 (4th Cir. 2008). We then consider the

substantive reasonableness of the sentence, taking into account

the totality of the circumstances. Gall, 552 U.S. at 51.

Although our determination of whether the ACCA enhancement

applies involves review for procedural error, Stokes’ assertion

that his three prior convictions were not committed on occasions

different from one another is a question of statutory

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interpretation that we consider de novo. United States v. Carr,

592 F.3d 636, 639 n.4 (4th Cir.), cert. denied, 131 S. Ct. 82

(2010).

Under the ACCA, a defendant is an armed career

criminal and subject to a fifteen-year mandatory minimum

punishment if he violates 18 U.S.C. § 922(g)(1), and has three

prior convictions for violent felonies or serious drug offenses,

“committed on occasions different from one another.” 18 U.S.C.

§ 924(e)(1); U.S. Sentencing Guidelines Manual § 4B1.4(a)

(2009). “Convictions occur on occasions different from one

another if each of the prior convictions arose out of a separate

and distinct criminal episode.” United States v. Letterlough,

63 F.3d 332, 335 (4th Cir. 1995) (internal quotation marks

omitted). “In other words, the predicate ACCA offenses must be

those that can be isolated with a beginning and an end.” United

States v. Hobbs, 136 F.3d 384, 388 (4th Cir. 1998) (internal

quotation marks and citation omitted).

To determine whether previous convictions arose out of

a separate and distinct criminal episode, we 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

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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.” United States v. Leeson, 453 F.3d 631, 640 (4th

Cir. 2006) (citing Letterlough, 63 F.3d at 335–37). We may

apply these factors independently or in conjunction, and “‘if

any one of the factors has a strong presence, it can

dispositively segregate an extended criminal enterprise into a

series of separate and distinct episodes.’” United States v.

Williams, 187 F.3d 429, 431 (4th Cir. 1999) (quoting

Letterlough, 63 F.3d at 336).

Our review of the record leads us to conclude that the

district court properly found that Stokes’ three prior breaking

and entering convictions were committed on occasions different

from one another and, therefore, properly counted them as

separate offenses for purposes of the ACCA. See Carr, 592 F.3d

at 644-45 (holding prior North Carolina convictions for felony

breaking or entering were separate and distinct criminal

episodes for purposes of applying ACCA where Carr broke into

thirteen separate storage units, the crimes involved multiple

victims and, as he committed each of the thirteen crimes, Carr

had the opportunity to make a conscious and knowing decision to

engage in another crime).

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 Because the district court did not err in imposing a

sentence under the ACCA, we affirm Stokes’ sentence. * 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

*
In light of our ruling, we find moot Stokes’ argument that
his 1999 attempted common law robbery conviction cannot be used
as a predicate offense under the ACCA.

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