United States v. Callahan

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4409

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRUCE CARROLL CALLAHAN, JR., a/k/a Hoss
Callahan,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-85)

Submitted: September 30, 2005 Decided: May 16, 2006

Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Walter H. Paramore, III, LAW OFFICES OF WALTER H. PARAMORE, III,
P.C., Jacksonville, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Bruce Carroll Callahan, Jr., pled guilty to being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

(2000). The district court sentenced Callahan to a 235-month term

of imprisonment after finding that he was an armed career criminal

under 18 U.S.C.A. § 924(e) (West 2000 & Supp. 2005). Callahan’s

counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), stating that, in his view, there are no

meritorious issues for appeal but questioning whether the district

court properly concluded that two of Callahan’s predicate offenses

were committed on occasions different from one another and whether,

in light of Blakely v. Washington, 542 U.S. 296 (2004), the

district court sentenced Callahan as an armed career criminal in

violation of the Sixth Amendment. After counsel filed the initial

brief, we entered an order according Callahan the opportunity to

file a supplemental brief in light of United States v. Booker, 543

U.S. 220 (2005). Counsel filed a supplemental brief, asserting

that Callahan should be resentenced because the district court

proceeded under a mandatory sentencing guidelines scheme. Callahan

was informed of his right to file a pro se supplemental brief but

has not done so. We affirm.1

1
In light of our disposition of this case, we deny the
Government’s motion for summary affirmance as moot. See 4th Cir.
R. 27(f).

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 Counsel asserts that the district court erred in

designating Callahan as an armed career criminal. Counsel reasons

that Callahan’s two prior North Carolina convictions for assault

with a deadly weapon with intent to kill or inflict serious injury

and assault with a deadly weapon inflicting serious injury were not

committed on occasions different from one another for purposes of

§ 924(e) because those offenses were consolidated for judgment in

state court. In considering whether the district court properly

designated Callahan as an armed career criminal, we review the

court’s legal determinations de novo and its factual findings for

clear error. United States v. Wardrick, 350 F.3d 446, 451 (4th

Cir. 2003). This court recently stated that determining whether

offenses were committed on occasions different from one another is

a question of law. United States v. Thompson, 421 F.3d 278, 285-86

(4th Cir. 2005), cert. denied, 126 S. Ct. 1463 (2006).

Our review of the record leads us to conclude that the

district court did not err in concluding that the assaults were

separate and distinct criminal episodes because Callahan knifed the

first victim, left the scene, returned nearly two hours later, and

shot the second victim. See United States v. Letterlough, 63 F.3d

332, 335-36 (4th Cir. 1995) (setting forth factors for court to

consider in determining whether offenses were committed on

different occasions under § 924(e)); see also Thompson, 421 F.3d at

285 (collecting cases applying factors). Although Callahan asserts

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that these assault convictions should have been counted as a single

predicate offense because they were consolidated for judgment in

state court, his assertion is foreclosed by our decision in United

States v. Samuels, 970 F.2d 1312, 1315 (4th Cir. 1992) (“Nothing in

§ 924(e) or the Guidelines suggests that offenses must be tried or

sentenced separately in order to be counted as separate predicate

offenses.”). We therefore find that the district court did not err

in designating Callahan as an armed career criminal.

Next, citing Blakely v. Washington, 542 U.S. 296 (2004),

counsel asserts that sentencing Callahan as an armed career

criminal violated Callahan’s Sixth Amendment rights because the

prior convictions were not admitted by Callahan or submitted to a

jury. Because Callahan did not raise this issue in the district

court, our review is for plain error. See United States v. Hughes,

401 F.3d 540, 547 (4th Cir. 2005). Callahan’s argument is

foreclosed by our decisions in Thompson, 421 F.3d at 283-86

(holding that nature and occasion of offenses are facts inherent in

convictions and those facts need not be alleged in indictment or

submitted to jury), and United States v. Cheek, 415 F.3d 349, 350-

51 (4th Cir.) (holding that application of armed career criminal

enhancement falls within exception for prior convictions where

facts were undisputed, making it unnecessary to engage in further

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fact finding about a prior conviction),2 cert. denied, 126 S. Ct.

640 (2005). Thus, there is no Sixth Amendment error in this case.

Finally, counsel asserts that Callahan’s sentence

violates Booker because the district court sentenced Callahan under

a mandatory sentencing guidelines scheme. Because Callahan did not

rely on Blakely or Booker in the district court, we review this

claim for plain error. See United States v. White, 405 F.3d 208,

215 (4th Cir.) (stating standard of review), cert. denied, 126 S.

Ct. 668 (2005). Although we held in White that treating the

guidelines as mandatory constitutes plain error, see id. at 216-17,

our review of the record convinces us that there is no

nonspeculative basis on which we could conclude that the district

court would have sentenced Callahan to a lower sentence had the

court proceeded under an advisory guidelines scheme. See id. at

225. Thus, Callahan has failed to demonstrate that the plain error

in sentencing him under a mandatory sentencing guidelines scheme

affected his substantial rights.

In accordance with Anders, we have reviewed the entire

record for any meritorious issues and have found none.

2
Although the presentence report relied on a “DOC Official
Crime Version” in setting forth the facts underlying two of the
predicate offenses used to designate Callahan as an armed career
criminal, Callahan admitted those facts at the state court plea
hearing. Thus, there is no violation of the rule announced in
Shepard v. United States, 544 U.S. 13 (2005). See United States v.
Simms, 441 F.3d 313, 317 (4th Cir. 2006) (citing Parilla v.
Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005)).

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Accordingly, we affirm Callahan’s conviction and sentence. This

court requires that counsel inform his client, in writing, of his

right to petition the Supreme Court of the United States for

further 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. Counsel’s motion must state that a copy thereof

was served on the client. 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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