UN PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 15
- 4810

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. ANTHONY WORTH WYRICK , Defendant

- Appellant

.

Appeal from the United States District Court for the Middle District of North Carolina , at Greensboro

. William L. Osteen, Jr. , Chief District Judge. ( 1:15

- cr - 00168

- WO

- 1 )

Submitted : August 18, 2017 Decided: September 14, 2017

Before TRAXLER, DUNCAN, and KEENAN , Circuit Judges.

Affirmed by un published per curiam opinion

.
Louis C. Allen, Federal Public Defender, John A. Duberstein, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Sandra J. Hairston, Acting United States Attorney, Angela H. Miller, Michael F. Jos eph, Terry M. Meinecke, Assistant United States Attorneys, Winston

- Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Anthony Worth Wyrick appeals the 51

- month sentence imposed following his guilty plea to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012). Wyrick’s counsel filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), certifying that there we re no meritorious grounds for appeal but questioning whether the district court erred in running Wyrick’s federal sentence consecutive to a sentence that may be imposed on pending state charges. Wyrick was notified of his right to file a pro se supplemental brief but he did not do so. The
G overnment initially declined to file a response brief. After conducting our Anders review, we directed the parties to provide merits briefing on the issue of whether, in light of Mathis v. United States , 136 S. Ct. 2243 (2016), and Johnson v. United Stat es , 135 S. Ct. 2551 (2015), the district court plainly erred in designating Wyrick’s 2005 North Carolina felony conviction for breaking and entering a crime of violence under U.S. Sentencing Guidelines Manual §§ 2K2.1(a)(4)(A), 4B1.2(a)(2) (2014). After t he parties submitted their brief s , we placed this appeal in abeyance for United States v. Royster , No. 15

- 4757, in which this court was slated to resolve whether a North Carolina breaking and entering conviction qualifies as a crime of violence under the c areer offender guideline. This case came out of abeyance after Royster was remanded to the district court . W e then directed the parties to submit a second merits brief addressing what impact, if any , Beckles v. United States , 137 S. Ct. 886 (2017), ha s on the previously identified issue. Briefing is now complete. For the reasons that follow, we affirm.3 We review a sentence for reasonableness, applying “a deferential abuse

- of

discretion standard.” Gall v. United States , 552 U.S. 38, 41 (2007). We fi rst determine whether the district court committed significant procedural error, such as incorrect calculation of the Sentencing Guidelines range, inadequate consideration of the 18 U.S.C. § 3553(a) (2012) factors, or insufficient explanation of the senten ce imposed. United States v. Dowell , 771 F.3d 162, 170 (4th Cir. 2014). In evaluating the district court’s Guidelines calculations, we review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. White , 771 F.3d 225, 235 (4th Cir. 2014). We review unpreserved Guidelines challenges for plain error. United States v. Aplicano

- Oyuela , 792 F.3d 416, 422 (4th Cir. 2015); see Molina

- Martinez v. United States , 136 S. Ct. 1338, 1343, 1345 (2016) (describing
st andard). As reflected in our initial briefing order, the primary issue in this case was what impact, if any, Johnson had on the computation of Wyrick’s Guidelines range. Specifically, Wyrick received an enhanced base offense level after the sentencing co urt found that he committed his underlying federal offense “subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” USSG § 2K2.1(a)(4)(A); see USSG § 4B1.2(a) (defining “crime of violence”). The co urt relied on Wyrick’s prior North Carolina breaking and entering conviction a s the predicate crime of violence for th is enhancement

. In Johnson , the Supreme Court determined that the residual clause of the Armed Career Criminal Act, reaching offenses t hat “involve[ ] conduct that presents a serious4 potential risk of physical injury to another,” see 18 U.S.C. § 924(e)(2)(B)(ii) (2012), is unconstitutionally vague. 135 S. Ct. at 2556

- 63. In Beckles , however, the Supreme Court declined to extend the reas oning in Johnson to the Guidelines, holding that the Guidelines are not subject to a due process vagueness challenge and , thus, that the residual clause under USSG § 4B1.2(a) (2) is not void for vagueness. 137 S. Ct. at 895. After Beckles , then, we may “ look to the residual clause of section 4B1.2(a) in assessing whether [a defendant’s] prior conviction is a crime of violence.” United States
v. Waters , No. 16

- 4214 , 2017 WL 2672649, at *5 (4th Cir. June 21, 2017). The Government correctly asserts that a North Carolina breaking and entering conviction readily qualif ies as a crime of violence under the then

- operative residual language in § 4B1.2(a)(2), and Wyrick does not seriously contend otherwise. Further, w e decline counsel’s invitation to consider whe ther the residual clause in § 4B1.2(a)(2) suffers from a vagueness problem separate and apart from the constitutional dimensions recognized in Johnson

. See United States v. Wurie , __ F.3d __, 2017 WL 3392673, at *3

- 6 (1st Cir. Aug. 8, 2017). * Turning, then, to the issue proffered in the Anders brief

— that the district court abused its discretion by refusing to run the federal sentence concurrent with the sentence that may be imposed on Wyrick’s pending state charges

— we agree that this claim is

* Our resolution of this issue obviates the need to consider Wyrick’s secondary argument that his North Carolina breaking and entering conviction was not a viable crime of violence because it did not qualify as the enumerated offense of “burglary of a dwelling.” USSG § 4B1.2(a)(2).5 m eritless. As counsel acknowledges, there is a presumption of consecutive sentences when sentences are “imposed at different times,” see 18 U.S.C. § 3584(a) (2012), and the district court did not abuse its discretion in rejecting Wyrick’s efforts to justif y deviating from that presumption here, see Setser v. United States , 566 U.S. 231, 236

- 37 (2012) (recognizing courts of appeals’ decisions upholding federal district court judges’ discretion to determine whether to impose a federal sentence concurrent with , or consecutive to, a yet

- to

- be

- imposed state sentence). Indeed, Wyrick wa s facing a separate state sentence for multiple counts of sexual assault, double first

- degree rape, double first

- degree kidnapping, and burglary that he allegedly committed in 1985 , for which he was charged based on DNA testing. This conduct is plainly unrelated to the instant federal offense of illegally possessing a firearm. Cf

. USSG § 5G1.3(c) (providing that the federal sentence should be imposed to run concurrent to a state s entence if the anticipated state sentence relates to an offense “that is relevant conduct to the instant offense of conviction”). In accordance with Anders , we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm Wyrick’s conviction and sentence. This court requires that counsel inform Wyrick, in writing, of the right to petition the Supreme Court of the United States for further review. If Wyrick requests that a petition be filed, but counse l 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 Wyrick. We dispense with oral6 argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
AFFIRMED