UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.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

Unpublished opinions are not binding precedent in this circuit.

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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

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