UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4609
DAVID MITCHELL BARKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CR-98-5)
Submitted: March 30, 1999
Decided: April 22, 1999
Before WIDENER, WILLIAMS, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William J. Rogers, WILLIAM J. ROGERS, P.C., Staunton, Virginia,
for Appellant. Robert P. Crouch, Jr., United States Attorney, Anthony
P. Giorno, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
David M. Barker pled guilty to one count of possession of a fire-
arm in violation of 18 U.S.C.A. § 922(g) (West Supp. 1999), and the
district court imposed a 180 month sentence. Barker's attorney has
filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967). Counsel states that there are no meritorious grounds for
appeal, but raises the following issue: "Did the District Court err in
concluding that prior convictions from a single trial may be counted
separately for purposes of sentencing enhancement under 18 U.S.C.A.
§ 924(e)." (Appellant's Brief at 1). Although informed of his right to
file a supplemental brief, Barker has not done so. Because our review
of the record reveals no reversible error, we affirm.
In February 1998 a federal grand jury indicted Barker on one count
of violating 18 U.S.C. § 922(g), and trial was set for May 26, 1998.
The district court judge accepted Barker's guilty plea following a
proper plea colloquy under FED. R. C RIM. P. 11 on May 27, 1998. In
the presentence report, the probation officer found that Barker had
possessed a .9 millimeter pistol and related ammunition. He further
found that Barker had four prior convictions for distribution of con-
trolled substances. Barker's base offense level was 24. See U.S. Sen-
tencing Guidelines Manual § 2K2.1(a)(2) (1997). However, because
of his prior convictions, he was subject to the provisions of 18 U.S.C.
§ 924(e), and was therefore classified as an armed career criminal.
Barker's base offense level was therefore properly enhanced to 33.
See USSG § 4B1.4(b)(3)(B). The probation officer recommended a
three level decrease for acceptance of responsibility pursuant to
USSG § 3E1.1(a) and (b), because Barker candidly acknowledged
that he possessed the firearm after being convicted of a felony.
The recommended offense level was 30, which, combined with
Barker's criminal offense category of VI,* yielded a guideline range
of 168 to 210 months. The district court adopted the probation offi-
cer's recommendations, sentencing Barker to 180 months.
_________________________________________________________________
*Because Barker was categorized as an armed career criminal his
criminal history category is automatically VI. See USSG § 4B1.4(c).
2
In his Anders brief, Barker questions whether the district court
erred in considering his multiple convictions from a single trial as
separate convictions for sentencing purposes. Under§ 924(e)(1) a
defendant is subject to an enhanced sentence if the instant offense of
conviction is a violation of § 922(g) and the defendant has at least
three prior convictions for a "violent felony" or "serious drug
offense," or both, committed on occasions different from one another.
USSG § 4B1.4, comment. (n.1). Barker was convicted of a drug dis-
tribution charge on August 11, 1986. In addition, at a trial held on
July 8, 1986, he was convicted of three separate counts of drug distri-
bution. Under Barker's argument, the three separate counts of convic-
tion on July 8, 1986, would be counted as merely one conviction for
purposes of the § 924(e). He accordingly argues that since he has only
two "countable" convictions, sentencing under the provisions of
§ 924(e) was impermissible.
We reject Barker's argument. The offenses for which Barker was
convicted on July 8, 1986, were comprised of one offense that
occurred on October 31, 1985, and two offenses that occurred on
November 14, 1985. Under § 924(e), the relevant inquiry for deter-
mining whether multiple convictions are separately countable is
whether they arose out of "separate and distinct criminal episode[s]."
United States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995) (quota-
tions and emphasis omitted). Because Barker's drug sales that led to
his three convictions on July 8, 1986, occurred on two different days
separated in time by two weeks, the best argument he can muster is
that his July trial resulted in only two "countable" convictions. See
United States v. Hobbs, 136 F.3d 384, 388-90 (4th Cir. 1998) (holding
that robberies committed within one hour of each other by the same
defendant to be separate convictions). However, even accepting with-
out deciding that Barker's three actual convictions on July 8, 1986,
merged into two "countable" convictions under§ 924(c), when these
two convictions are coupled with the additional conviction on August
11, 1986, it is plain that the district court did not err in its application
of § 924(e) and USSG § 4B1.4.
We have examined the entire record in this case in accordance with
the requirements of Anders, and find no meritorious issues for appeal.
The court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
3
review. If the client 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. Coun-
sel's motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
4