UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4613

MICHAEL CLEOPHUS WITHERS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

N. Carlton Tilley, Jr., Chief District Judge.

(CR-00-403)

Submitted: January 17, 2002

Decided: January 30, 2002

Before WILKINS and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Louis C. Allen III, Federal Public Defender, William S. Trivette,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Benjamin H. White, Jr., United States Attorney, Angela H.

Miller, Assistant United States Attorney, Greensboro, North Carolina,

for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Michael Cleophus Withers pleaded guilty to one count of possession of a firearm by a convicted felon, 18 U.S.C.A. § 922(g)(1) (West

2000). Withers was found to be an armed career criminal, 18

U.S.C.A. § 924(e)(1) (West 2000), and he was sentenced to 180

months in prison. Withers now appeals. His attorney has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), in which he

claims that Withers was improperly sentenced as an armed career

criminal but states that there are no meritorious issues for review.

Withers was advised of his right to file a pro se supplemental brief.

He filed a pro se motion for appointment of counsel, identifying three

issues that he wishes to raise. The motion is construed as a pro se supplemental brief. We affirm. 

Both Withers’ counsel and Withers in his pro se brief claim that he

was improperly sentenced as an armed career criminal. A defendant

convicted of violating § 922(g)(1) who has three previous convictions

for serious drug offenses or violent felonies committed on occasions

different from one another is subject to a minimum prison term of fifteen years. 18 U.S.C. § 924(e)(1). Here, it is undisputed that Withers

had five previous North Carolina convictions for breaking and entering, in violation of N.C. Gen. Stat. § 14-54 (1999). We previously

have held that a conviction under § 14-54 constitutes a predicate violent felony for armed career criminal purposes. United States v. Bowden, 975 F.2d 1080, 1083-85 (4th Cir. 1992). The five offenses

occurred on January 9, 1995, at 1720 Freeway Drive and 1724 Freeway Drive in Reidsville, North Carolina, and on January 11, 1995, at

408 Woodrow Street, 408-B Woodrow Street, and 215 Settle Street,

also in Reidsville. 

Withers argues on appeal, as he did at sentencing, that the five state

crimes did not occur on occasions different from one another. We

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review this legal issue de novo. United States v. Williams, 187 F.3d

429, 431 (4th Cir. 1999). We agree with the district court that Withers

had at least three prior qualifying convictions (the January 9 offenses;

the January 11 Woodrow Street offenses; and the January 11 Settle

Street offense). See id. (listing factors that may be considered when

deciding if previous felonies were separate offenses). 

The remaining claims raised in the pro se brief have no merit.

Because ineffective assistance of counsel does not conclusively

appear on the face of the record, Withers must raise this claim, if at

all, in a motion filed pursuant to 28 U.S.C.A. § 2255 (West Supp.

2001). See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).

Further, authority to convene a grand jury existed. 

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

this case and find no reversible error. We therefore affirm Withers’

conviction and sentence. We deny counsel’s motion to withdraw at

this time. This court requires that counsel inform Withers in writing

of his right to petition the Supreme Court of the United States for further review. If Withers 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 of the motion was served on Withers. 

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. The motion for

appointment of counsel is denied. The claim that there was no jurisdiction to convene a grand jury is frivolous.

AFFIRMED

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