UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4609

DAVID MITCHELL BARKER,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Harrisonburg.

James H. Michael, Jr., Senior District Judge.

(CR-98-5)

Submitted: March 30, 1999

Decided: April 22, 1999

Before WIDENER, WILLIAMS, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William J. Rogers, WILLIAM J. ROGERS, P.C., Staunton, Virginia,

for Appellant. Robert P. Crouch, Jr., United States Attorney, Anthony

P. Giorno, Assistant United States Attorney, Roanoke, Virginia, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

David M. Barker pled guilty to one count of possession of a firearm in violation of 18 U.S.C.A. § 922(g) (West Supp. 1999), and the

district court imposed a 180 month sentence. Barker's attorney has

filed a brief in accordance with Anders v. California, 386 U.S. 738

(1967). Counsel states that there are no meritorious grounds for

appeal, but raises the following issue: "Did the District Court err in

concluding that prior convictions from a single trial may be counted

separately for purposes of sentencing enhancement under 18 U.S.C.A.

§ 924(e)." (Appellant's Brief at 1). Although informed of his right to

file a supplemental brief, Barker has not done so. Because our review

of the record reveals no reversible error, we affirm.

In February 1998 a federal grand jury indicted Barker on one count

of violating 18 U.S.C. § 922(g), and trial was set for May 26, 1998.

The district court judge accepted Barker's guilty plea following a

proper plea colloquy under FED. R. C RIM. P. 11 on May 27, 1998. In

the presentence report, the probation officer found that Barker had

possessed a .9 millimeter pistol and related ammunition. He further

found that Barker had four prior convictions for distribution of controlled substances. Barker's base offense level was 24. See U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) (1997). However, because

of his prior convictions, he was subject to the provisions of 18 U.S.C.

§ 924(e), and was therefore classified as an armed career criminal.

Barker's base offense level was therefore properly enhanced to 33.

See USSG § 4B1.4(b)(3)(B). The probation officer recommended a

three level decrease for acceptance of responsibility pursuant to

USSG § 3E1.1(a) and (b), because Barker candidly acknowledged

that he possessed the firearm after being convicted of a felony.

The recommended offense level was 30, which, combined with

Barker's criminal offense category of VI,* yielded a guideline range

of 168 to 210 months. The district court adopted the probation officer's recommendations, sentencing Barker to 180 months.

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*Because Barker was categorized as an armed career criminal his

criminal history category is automatically VI. See USSG § 4B1.4(c).

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In his Anders brief, Barker questions whether the district court

erred in considering his multiple convictions from a single trial as

separate convictions for sentencing purposes. Under§ 924(e)(1) a

defendant is subject to an enhanced sentence if the instant offense of

conviction is a violation of § 922(g) and the defendant has at least

three prior convictions for a "violent felony" or "serious drug

offense," or both, committed on occasions different from one another.

USSG § 4B1.4, comment. (n.1). Barker was convicted of a drug distribution charge on August 11, 1986. In addition, at a trial held on

July 8, 1986, he was convicted of three separate counts of drug distribution. Under Barker's argument, the three separate counts of conviction on July 8, 1986, would be counted as merely one conviction for

purposes of the § 924(e). He accordingly argues that since he has only

two "countable" convictions, sentencing under the provisions of

§ 924(e) was impermissible.

We reject Barker's argument. The offenses for which Barker was

convicted on July 8, 1986, were comprised of one offense that

occurred on October 31, 1985, and two offenses that occurred on

November 14, 1985. Under § 924(e), the relevant inquiry for determining whether multiple convictions are separately countable is

whether they arose out of "separate and distinct criminal episode[s]."

United States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995) (quotations and emphasis omitted). Because Barker's drug sales that led to

his three convictions on July 8, 1986, occurred on two different days

separated in time by two weeks, the best argument he can muster is

that his July trial resulted in only two "countable" convictions. See

United States v. Hobbs, 136 F.3d 384, 388-90 (4th Cir. 1998) (holding

that robberies committed within one hour of each other by the same

defendant to be separate convictions). However, even accepting without deciding that Barker's three actual convictions on July 8, 1986,

merged into two "countable" convictions under§ 924(c), when these

two convictions are coupled with the additional conviction on August

11, 1986, it is plain that the district court did not err in its application

of § 924(e) and USSG § 4B1.4.

We have examined the entire record in this case in accordance with

the requirements of Anders, and find no meritorious issues for appeal.

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

right to petition the Supreme Court of the United States for further

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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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