UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4200

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

KELVIN DWAIN VANHOOK, JR.,

 Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Leonie M. Brinkema, 

District Judge. (1:11-cr-00512-LMB-1)

Submitted: September 21, 2012 Decided: October 11, 2012

Before GREGORY, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Kevin R. Brehm, 

Assistant Federal Public Defender, Alexandria, Virginia, for 

Appellant. Neil H. MacBride, United States Attorney, Kara 

Martin Traster, Special Assistant United States Attorney, 

Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Kelvin Dwain Vanhook, Jr. was convicted by a jury of 

possession of a firearm by a convicted felon, in violation of 18 

U.S.C. § 922(g)(1) (2006). He was sentenced to 180 months’ 

imprisonment under the Armed Career Criminal Act (“ACCA”), 18 

U.S.C. § 924(e) (2006), based on prior convictions for 

distribution of cocaine. Vanhook appeals, arguing that the 

district court erred in sentencing him as an armed career 

criminal. We affirm.

We consider de novo questions of statutory 

interpretation involving the application of the ACCA 

enhancement. United States v. Carr, 592 F.3d 636, 639 n.4 (4th 

Cir.), cert. denied, 131 S. Ct. 82 (2010). A defendant is 

properly classified as an armed career criminal if he violates 

18 U.S.C. § 922(g) and has at least three previous convictions 

for violent felonies or serious drug offenses “committed on 

occasions different from one another.” 18 U.S.C. § 924(e)(1). 

Under the Sixth Amendment, “[o]ther than the fact of a 

prior conviction, any fact that increases the penalty for a 

crime beyond the prescribed statutory maximum must be submitted 

to a jury, and proved beyond a reasonable doubt.” Apprendi v. 

New Jersey, 530 U.S. 466, 490 (2000); see United States v. 

Cheek, 415 F.3d 349, 354 (4th Cir. 2005). A sentencing judge 

“cannot resolve a ‘disputed fact . . . about a prior 
3

conviction,’ if doing so requires data that was not inherent in 

that prior conviction.” United States v. Boykin, 669 F.3d 467,

470-71 (4th Cir. 2012) (quoting Shepard v. United States, 544 

U.S. 13, 25 (2005)). However, “some facts are so inherent in a 

conviction that they need not be found by a jury.” United 

States v. Thompson, 421 F.3d 278, 282 (4th Cir. 2005). Thus, a

court may consider such inherent facts, including the “date [of 

conviction], statutory violation, and the like[,] where [they 

are] properly established by one of the sources approved in 

Shepard.” Id.; see Boykin, 669 F.3d at 470-71.

Vanhook argues that a jury is required to determine 

whether a defendant’s prior offenses occurred on different 

occasions. However, we have previously concluded that a 

sentencing judge may undertake the ACCA’s “separateness” inquiry 

by reference to Shepard-approved sources. See Boykin, 669 F.3d 

at 471; Thompson, 421 F.3d at 285-86. 

Vanhook also contends that the Government failed to 

prove that his convictions for distributing cocaine on September 

3, 16, and 22, 2003, should be treated as occurring on different 

occasions under the ACCA. Offenses occur “on different 

occasions when they arise out of a separate and distinct 

criminal episode.” Boykin, 669 F.3d at 470 (internal quotation 

marks and emphasis omitted). Thus, the ACCA includes as 

different occasions “only those predicate offenses that can be 
4

isolated with a beginning and an end—ones that constitute an 

occurrence unto themselves.” United States v. Letterlough, 63 

F.3d 332, 335 (4th Cir. 1995). In determining whether prior 

convictions were separate occasions, we 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) whether the defendant had the opportunity after 

committing the first-in-time offense to make a 

conscious and knowing decision to engage in the 

next-in-time offense.

Carr, 592 F.3d at 644. “We can consider these factors together 

or independently, and ‘if any one of the factors has a strong 

presence, it can dispositively segregate an extended criminal 

enterprise into a series of separate and distinct episodes.’” 

Id. (quoting Letterlough, 63 F.3d at 336).

Here, the Shepard-approved record establishes that 

Vanhook himself dealt cocaine on three different days separated 

by approximately one to two weeks. Even assuming, as Vanhook 

asserts, that the Government bears the burden of establishing 

each of the Carr factors, we conclude without difficulty that 

the district court properly treated Vanhook’s offenses as 

occurring on different occasions, and thus proper ACCA 

predicates. See Letterlough, 63 F.3d at 337; cf. United 

States v. Tucker, 603 F.3d 260, 265-66 (4th Cir. 2010) 

(concluding that burglary convictions did not occur on different 
5

occasions under the ACCA because the Government could not 

establish any Carr factor in the absence of evidence that Tucker 

himself participated in multiple burglaries).

Accordingly, we affirm the district court’s judgment. 

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