Filed: December 20, 2012

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12-4439 (4:11-cr-00769-TLW-1)

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TIMOTHY CHAMEL HICKSON,

Defendant - Appellant.

O R D E R

The Court amends its opinion filed December 13, 2012,

as follows:

On page 2, line 10 of text -- the word “the” is added

before the word “sentence.”

For the Court – By Direction

/s/ Patricia S. Connor Clerk UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12-4439

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

TIMOTHY CHAMEL HICKSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:11-cr-00769-TLW-1)

Submitted: October 31, 2012 Decided: December 13, 2012

Before WYNN, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael A. Meetze, Assistant Federal Public Defender, Florence, South Carolina, for Appellant. Alfred William Walker Bethea, Jr., Assistant United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Timothy Chamel Hickson pleaded guilty to possession of

a firearm after sustaining a prior conviction for an offense

punishable by a term exceeding one year of imprisonment, in

violation of

(g)(1) (2006). The district court

sentenced Hickson to 188 months of imprisonment, and he now

appeals. Appellate counsel has filed a brief pursuant to

Anders v. California,

(1967), questioning whether

the district court fully complied with Fed. R. Crim. P. 11,

whether the court erred in finding that Hickson was an armed

career criminal, and whether the sentence was reasonable.

Hickson has also filed a pro se supplemental brief raising

additional issues. * Finding no error, we affirm.

Counsel first questions whether the district court

complied with Rule 11. The purpose of the Rule 11 colloquy is

to ensure that the plea of guilt is entered into knowingly and

voluntarily. See United States v. Vonn,

(2002).

Accordingly, prior to accepting a guilty plea, a trial court,

through colloquy with the defendant, must inform the defendant

of, and determine that he understands, the nature of the charges

to which the plea is offered, any mandatory minimum penalty, the

* We have considered the issues raised in Hickson’s pro se brief and conclude they lack merit.

2 maximum possible penalty he faces, and the various rights he is

relinquishing by pleading guilty. Fed. R. Crim. P. 11(b). The

court also must determine whether there is a factual basis for

the plea. Id.; United States v. DeFusco,

(4th

Cir. 1991).

In addition, as Hickson did not move in the district

court to withdraw his guilty plea, any error in the Rule 11

hearing is reviewed for plain error. United States v. Martinez,

(4th Cir. 2002). We have thoroughly reviewed

the record and conclude that the district court fully complied

with the requirements of Rule 11. We conclude, therefore, that

Hickson’s guilty plea was knowing and voluntary.

Counsel next questions whether the district court

correctly concluded that Hickson qualified for the enhanced

penalties of the Armed Career Criminal Act (“ACCA”),

(e) (2006). We review a district court’s determination of

whether prior convictions qualify as predicate convictions for

purposes of the ACCA de novo. United States v. Brandon,

(4th Cir. 2001). Under the ACCA, if a defendant

is convicted of violating § 922(g) and has sustained three prior

convictions for violent felonies or serious drug offenses

committed on occasions different from one another, the defendant

is subject to a statutory mandatory minimum of fifteen years of

imprisonment.

(e)(1). A violent felony is

3 defined as a “crime, punishable by a term exceeding one year of

imprisonment, . . . that . . . has as an element the use,

attempted use, or threatened use of force against the person of

another.”

(e)(2)(B)(i)-(ii). A serious drug

offense is any offense under state law that involves the

distribution of a controlled substance for which a maximum term

of imprisonment of ten years or more is prescribed by law.

In addition, to determine whether offenses were

committed on occasions different from one another, a court must

consider:

(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) after the defendant committed the first-in-time offense, did the defendant have the opportunity to make a conscious and knowing decision to engage in the next-in-time offense.

United States v. Leeson,

(4th Cir. 2006)

(citing United States v. Letterlough,

(4th

Cir. 1995)). Here, Hickson had sustained prior convictions for

assault and battery of a high and aggravated nature and two

counts of distribution of cocaine base. The district court did

not err in determining that the controlled substance offenses

were committed on occasions separate from one another and

qualified as two predicate offenses for purposes of the ACCA.

4 Finally, counsel questions whether the sentence is

reasonable. We review a sentence for reasonableness, applying

an abuse of discretion standard. Gall v. United States,

(2007); see also United States v. Layton,

(4th Cir. 2009). In so doing, we examine the sentence

for “significant procedural error,” including “failing to

calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the

[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.” Gall,

. We will

presume on appeal that a sentence within a properly calculated

advisory Guidelines range is reasonable. United States v.

Allen,

(4th Cir. 2007); see Rita v. United

States,

(2007) (upholding presumption of

reasonableness for within-Guidelines sentence). We have

thoroughly reviewed the record and conclude that the sentence

was procedurally and substantively reasonable.

We have examined the entire record in accordance with

the requirements of Anders and have found no meritorious issues

for appeal. Accordingly, we affirm the judgment of the district

court. This court requires that counsel inform Hickson, in

writing, of the right to petition the Supreme Court of the

United States for further review. If Hickson requests that a

5 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 Hickson. 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

6