UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4440
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERICK MONTIQUE HARPER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:13-cr-00272-D-1)
Submitted: July 28, 2016 Decided: September 9, 2016
Before MOTZ, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, Acting United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derick Montique Harper pled guilty to possession of a
firearm by a convicted felon. The district court applied the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (ACCA), and
sentenced Harper to 144 months’ imprisonment. On appeal, Harper
argues that the district court erred by denying him funds to
secure the expert of his choice and by applying the ACCA based
on a finding that a series of burglaries and kidnappings that he
committed on February 24, 1997, constituted multiple predicates. 1
We affirm.
1 Harper also asserts that the trial court should have
granted him a greater departure or variance based on factors
such as his military service and post-traumatic stress disorder,
but concedes that this claim is not viable unless the Court
finds that the ACCA is inapplicable. Because the district court
properly applied the ACCA, this argument warrants no further
analysis.
Harper also argues that the district court erred by
imposing a 2-level enhancement for obstruction of justice under
USSG § 3C1.1 based on the risk posed by his flight. But the
district court imposed a substantial risk enhancement under USSG
§ 3C1.2, not an obstruction of justice enhancement under USSG
§ 3C1.1. Moreover, this enhancement did not affect Harper’s
Sentencing Guidelines range, which was determined by the armed
career criminal Guideline and then adjusted upward to the
statutory minimum. See USSG §§ 4B1.4(b)(3)(B), 5G1.1(b).
In its response brief, the Government asserts that Harper’s
challenges to the § 3C1.2 enhancement and the denial of a
greater departure or variance are barred by his appellate
waiver. Because the only claims for which the Government
asserts the waiver are plainly meritless, we do not reach the
issue of whether the waiver is valid and enforceable.
2
On Harper’s motion, the district court had Harper evaluated
by Dr. Manuel E. Gutierrez, a prison psychologist, who
provisionally diagnosed him with post-traumatic stress disorder
(PTSD). Believing this evaluation to be inadequate, Harper
sought funds to retain Dr. Richard Weisler. The court denied
this request and instead ordered Dr. Gutierrez to conduct a
second evaluation. Harper challenges this ruling on appeal, and
we review it for abuse of discretion. United States v.
Hartsell, 127 F.3d 343, 349 (4th Cir. 1997). Under 18 U.S.C.
§ 3006A(e) (2012), indigent defendants are entitled to funds for
expert services necessary to their adequate defense. Id. “[A]
defendant who alleges that a denial of [§ 3006A(e)] funds has
violated due process must demonstrate by clear and convincing
evidence that the denial resulted in actual prejudice to the
defense.” Id. Because Harper has not shown prejudice from his
examination only by Dr. Gutierrez and not Dr. Weisler, we
conclude that he has failed to establish that the district court
abused its discretion.
Harper also argues that his February 1997 offenses do not
constitute separate ACCA predicates. “We review de novo the
district court’s legal conclusion that . . . [a defendant’s]
qualifying convictions were committed on occasions different
from one another.” United States v. Span, 789 F.3d 320, 325
(4th Cir. 2015) (internal quotation marks omitted). “However,
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we review the district court’s factual findings, and its
judgment regarding factual disputes, for clear error.” Id.
“[C]lear error occurs when a district court’s factual findings
are against the clear weight of the evidence considered as a
whole.” Id. (internal quotation marks omitted).
We have come to rely on five factors to determine
whether predicate ACCA offenses were committed on
different occasions: (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) whether the defendant had the
opportunity after committing the first-in-time offense
to make a conscious and knowing decision to engage in
the next-in-time offense.
United States v. Linney, 819 F.3d 747, 751 (4th Cir. 2016); see
United States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995)
(setting forth factors).
Having reviewed the record, we agree with the district
court that Harper’s February 1997 offenses, which occurred at
different times and in at least three different locations,
constituted at least three distinct ACCA predicates. See
Linney, 819 F.3d at 752-53 (finding separate predicates under
similar circumstances). Although Harper argues that his PTSD
rendered him psychologically incapable of ceasing his criminal
conduct between offenses, the evidence does not indicate that
Harper’s decision to continue his spree was unconscious or
unknowing, and Harper’s guilty pleas establish that he had
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sufficient mens rea to convict him of kidnapping, burglary, and
breaking and entering. Accordingly, we conclude that the
district court did not err in finding that Harper’s February
1997 offenses occurred on at least three separate occasions.
Next, Harper argues that the ACCA’s requirement that
predicates be “committed on occasions different than one
another” is unconstitutionally vague under Johnson v. United
States, 135 S. Ct. 2551 (2015). 2 The Johnson Court found that
the residual clause of the ACCA’s definition of “violent felony”
was unconstitutionally vague because the Supreme Court’s many
attempts to devise a workable standard for applying that clause
had failed. 135 S. Ct. at 2557-60. In contrast, this Court has
long applied the Letterlough factors with none of the problems
cited in Johnson. See, e.g., Linney, 819 F.3d at 751. As a
result, we conclude that Johnson does not call into question the
validity of the ACCA’s requirement that predicate offenses be
committed on different occasions.
Finally, Harper has filed a notice of supplemental
authorities in which he notes the Supreme Court’s ruling in
Mathis v. United States, 136 S. Ct. 2243 (2016). In light of
2 Harper seeks to assert an Eighth Amendment challenge to
the ACCA, but such a challenge has already been rejected by this
court, and the fact of Harper’s PTSD does not alter this
analysis. United States v. Presley, 52 F.3d 64, 68 (4th Cir.
1995).
5
Mathis, Harper seeks to retract his concession that North
Carolina second-degree kidnapping is a violent felony and to
challenge the use of this offense as an ACCA predicate. The
Government has moved to strike this request, and Harper has
moved for leave to file a supplemental brief asserting this
issue. We agree with the Government that Harper waived this
issue by expressly disclaiming it at sentencing. United States
v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014) (“A party who
identifies an issue, and then explicitly withdraws it, has
waived the issue.” (internal quotation marks omitted)).
Moreover, even if this issue were deemed forfeited rather than
waived, it would not entitle Harper to relief because any error
in this respect is not plain. Compare Mathis, 136 S. Ct. at
2249, 2257 (holding that where statute provides “various factual
means of committing a single element,” as opposed to multiple
alternative elements, courts may not apply modified categorical
approach to determine which of those factual means defendant
used) with United States v. Flores-Granados, 783 F.3d 487, 492-
98 (4th Cir.) (applying categorical approach to hold that North
Carolina second-degree kidnapping is categorically crime of
violence under USSG § 2L1.2 because it constitutes generic
kidnapping), cert. denied, 136 S. Ct. 224 (2015).
Accordingly, we affirm the judgment of the district court.
We deny as moot the Government’s motion to strike and deny
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Harper’s motion for leave to file a supplemental brief because
Harper has waived the issue he now seeks to assert. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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