United States v. Antoine Thorpe

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 29, 2019
• Docket: 18-4693
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4693

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTOINE JUAN THORPE,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:18-cr-00090-TDS-1)

Submitted: April 25, 2019 Decided: April 29, 2019

Before FLOYD and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Dismissed in part and affirmed in part by unpublished per curiam opinion.

Eugene E. Lester III, SHARPLESS MCCLEARN LESTER DUFFY, PA, Greensboro, North Carolina, for Appellant. Kyle David Pousson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Antoine Juan Thorpe appeals his convictions and 150-month sentence based on his

guilty plea to possession with intent to distribute marijuana, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(D) (2012), and possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1) (2012). On appeal, counsel for Thorpe

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there

are no meritorious issues for appeal but questioning whether Thorpe’s Armed Career

Criminal Act (“ACCA”) enhancement for his § 922(g) sentence was error. The

Government did not respond to the Anders brief but has moved to dismiss the appeal in

part based on Thorpe’s waiver of appellate rights in his plea agreement. Thorpe did not

file a supplemental pro se brief, despite notice of his right to do so. We grant the motion

to dismiss the appeal in part, dismiss in part, and affirm in part.

Thorpe waived his appellate rights to challenge his conviction and sentence except

for claims of ineffective assistance of counsel, prosecutorial misconduct, a sentence in

excess of the statutory maximum, or a sentence based on an unconstitutional factor. “We

review the validity of an appeal waiver de novo, and will enforce the waiver if it is valid

and the issue appealed is within the scope of the waiver.” United States v. Copeland, 707

F.3d 522, 528 (4th Cir. 2013). To determine whether a waiver is knowing and intelligent,

this Court examines “the totality of the circumstances, including the experience and

conduct of the defendant, his educational background, and his knowledge of the plea

agreement and its terms.” United States v. McCoy, 895 F.3d 358, 362 (4th Cir. 2018)

(internal quotation marks omitted).

2 Thorpe declined to respond to the Government’s motion to dismiss and does not

argue in his Anders brief that the appellate waiver is not valid. He argues that his ACCA

claim falls outside the scope of the waiver because his 150-month sentence exceeds the

ten-year statutory maximum under 18 U.S.C. § 924(e)(1). We conclude that Thorpe

validly waived his right to appeal and agree with Thorpe that the issue raised in his

Anders brief falls outside the compass of the waiver.

Thorpe argues that the three predicate offenses used for his ACCA enhancement

occurred in a limited geographic area and on the same night and early morning and

therefore did not occur on different occasions. We review de novo the district court’s

finding that predicate offenses were committed on separate occasions. United States v.

Linney, 819 F.3d 747, 751 (4th Cir. 2016). The Government bears the burden of showing

that “each offense arose out of a separate and district criminal episode. That is, each

predicate offense must have a beginning and an end, such that they each constitute an

occurrence unto themselves.” Id. (citation and internal quotation marks omitted.) We

consider five factors in analyzing the district court’s finding. Id. Upon review of the

record, we discern no error by the district court. The district court considered the correct

factors and correctly found that Thorpe’s predicate offenses occurred on different

occasions. We therefore affirm Thorpe’s sentence.

In accordance with Anders, we have reviewed the record in this case and have

identified no unwaived meritorious issues for appeal. We therefore grant the

Government’s motion to dismiss in part, dismiss the appeal in part, and affirm in part.

This court requires that counsel inform Thorpe, in writing, of the right to petition the

3 Supreme Court of the United States for further review. If Thorpe 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 Thorpe. 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.

DISMISSED IN PART, AFFIRMED IN PART