United States v. Joshua Fuller

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 19, 2022
• Docket: 20-4220
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4220

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSHUA DALE FULLER,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:17-cr-00044-MR-WCM-1)

Submitted: April 27, 2022 Decided: May 19, 2022

Before MOTZ and THACKER, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

ON BRIEF: William S. Trivette, WILLIAM S. TRIVETTE, ATTORNEY AT LAW, PLLC, Greensboro, North Carolina, for Appellant. Anthony Joseph Enright, Assistant United States Attorney, Charlotte, North Carolina, Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

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PER CURIAM:

Joshua Dale Fuller pled guilty, following a single robbery of a financial institution,

to bank robbery, in violation of 18 U.S.C. §§ 2, 2113(a) (Count 1); assault with a dangerous

weapon during bank robbery, in violation of 18 U.S.C. §§ 2, 2113(d) (armed bank robbery)

(Count 2); and use and discharge of a firearm during the commission of a crime of violence,

in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(iii) (Count 3). The district court denied

Fuller’s motion for a downward variance and imposed concurrent 46-month sentences on

Counts 1 and 2 and a consecutive 120-month sentence on Count 3, for a total term of 166

months’ imprisonment. Fuller timely appealed from the amended criminal judgment, and

his counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that

there were no meritorious grounds for appeal but questioning whether the sentence

imposed was substantively reasonable.

After independently reviewing the record pursuant to Anders, we identified a

potentially meritorious issue, and accordingly directed the parties to provide supplemental

briefing addressing that issue: whether the conviction and concurrent sentence imposed on

the bank robbery charged in Count 1 were multiplicitous in light of the conviction and

sentence imposed on the armed bank robbery charged in Count 2. After Fuller filed his

supplemental brief, the Government moved to remand this case to the district court with

instructions to vacate Fuller’s conviction on Count 1. Fuller opposes the limited remand

sought by the Government, instead asserting that the case should be remanded to the district

court for a determination of whether to dismiss Count 1 or Count 2, and for resentencing.

For the reasons that follow, we grant the Government’s motion to remand, but only to the

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extent it seeks remand for the entry of an amended criminal judgment. We affirm Fuller’s

convictions on Counts 2 and 3, direct that his conviction on Count 1 be merged into the

conviction for Count 2, vacate the sentence on Count 1, and remand for the entry of an

amended judgment reflecting this disposition.

Anders counsel questions whether, in light of Fuller’s age, personal history, and lack

of a criminal record, his 166-month sentence is excessive. We review a criminal

“sentence[]—whether inside, just outside, or significantly outside the Guidelines range—

under a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41

(2007). We “first ensure that the district court committed no significant procedural error,

such as failing to calculate (or improperly calculating) the Guidelines range, . . . failing to

consider the [18 U.S.C.] § 3553(a) factors, . . . or failing to adequately explain the chosen

sentence.” Id. at 51. If there is no significant procedural error, then we consider the

sentence’s substantive reasonableness. Id.; see United States v. Provance, 944 F.3d 213,

218 (4th Cir. 2019). “Any sentence that is within or below a properly calculated Guidelines

range is presumptively reasonable.” United States v. White, 810 F.3d 212, 230 (4th Cir.

2016) (internal quotation marks omitted). Having carefully reviewed the record, we

conclude that the district court properly calculated the advisory Guidelines ranges, gave

the parties the opportunity to argue for an appropriate sentence, and sufficiently explained

the chosen sentence. Fuller, therefore, has failed to rebut the presumption of

reasonableness afforded his within-Guidelines-range sentence.

However, because it is well established that § 2113(a) is a lesser-included offense

of § 2113(d), United States v. Whitley, 759 F.2d 327, 331 (4th Cir. 1985) (en banc); see

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United States v. Gaddis, 424 U.S. 544, 547 (1976) (recognizing “merger” of convictions

under § 2113(a) and § 2113(d) for same robbery), we find that Fuller’s bank robbery

conviction must be merged into the armed bank robbery conviction for sentencing

purposes. The district court therefore erred in imposing a separate 46-month concurrent

sentence for bank robbery. See United States v. Jones, 204 F.3d 541, 544 (4th Cir. 2000)

(concluding that defendant’s drug possession conviction should have been merged into

conviction for possession with intent to distribute and, therefore, vacating the sentence

imposed for the lesser-included offense of possession).

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

found no other meritorious grounds for appeal. Because we conclude that Fuller’s bank

robbery conviction should have been merged into the armed bank robbery conviction, we

vacate the sentence for Count 1. We affirm Fuller’s remaining convictions and sentence,

and we remand for the entry of an amended judgment reflecting this disposition. See

United States v. Midgett, 488 F.3d 288, 302 (4th Cir. 2007) (vacating sentence imposed on

lesser-included bank robbery conviction and “remand[ing] for the entry of an amended

judgment that reflects this disposition”).

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

Supreme Court of the United States for further review. If Fuller 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 Fuller. We dispense with oral argument because the facts

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and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED