UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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