UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4613

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DERRICK PITTMAN,

Defendant - Appellant.

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

Greenville. James C. Fox, Senior District Judge. (4:15-cr-00068-F-2)

Submitted: August 31, 2017 Decided: April 3, 2018

Before GREGORY, Chief Judge, DIAZ, Circuit Judge, and SHEDD, Senior Circuit 

Judge.

Affirmed by unpublished per curiam opinion.

Jenna Turner Blue, BLUE LLP, Raleigh, North Carolina, for Appellant. Jennifer P. 

May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Derek Pittman pled guilty to conspiring to possess with intent to distribute 500 

grams or more of cocaine and carrying and using a firearm during and in relation to a 

drug trafficking crime. The district court sentenced Pittman to a below-Sentencing 

Guidelines range of 197 months of imprisonment. His counsel filed a brief pursuant to 

Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issues 

for appeal, but raising for the court’s consideration whether Pittman had the requisite 

predicate felonies to receive the career offender enhancement. Pittman did not file a pro 

se supplemental brief and the Government did not file a brief.1

 After a careful review of 

the record, we affirm.

We review a sentence for reasonableness, applying “a deferential 

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). The court 

first determines whether the district court committed significant procedural error, such as 

incorrect calculation of the Guidelines range, inadequate consideration of the 18 U.S.C. 

§ 3553(a) (2012) sentencing factors, or insufficient explanation of the sentence 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. 

 1 The Government also did not move to dismiss this untimely appeal. In 

accordance with our opinion in United States v. Oliver, 878 F.3d 120 (4th Cir. 2017), we 

address the merits of Pittman’s Anders appeal and are bound to complete a full review of 

the record on appeal for meritorious issues.
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White, 771 F.3d 225, 235 (4th Cir. 2014). In her Anders brief, counsel concedes that 

Pittman’s North Carolina robbery with a dangerous weapon and felony drug offenses are 

properly classified as predicate convictions under the career offender guideline. In light 

of recent authority from the Supreme Court and this court, this concession is well taken. 

Under the career offender guideline, “crime of violence” is defined as an offense 

punishable by more than one year of imprisonment that “(1) has as an element the use, 

attempted use, or threatened use of physical force against the person of another [(the 

“force clause”)], or (2) is burglary of a dwelling, arson, or extortion, involves use of 

explosives [(the “enumerated offenses clause”)], or otherwise involves conduct that 

presents a serious potential risk of physical injury to another [(the “residual clause”)].” 

U.S. Sentencing Guidelines Manual § 4B1.2(a) (2015).

2

 The commentary to USSG 

§ 4B1.2 enumerates other offenses as crimes of violence, including “robbery.” USSG 

§ 4B1.2 cmt. n.1. 

In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court 

determined that the residual clause of the Armed Career Criminal Act (ACCA), reaching 

offenses that “involve[] conduct that presents a serious 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 v. United States, 137 S. Ct. 886 (2017), however, the Supreme 

Court declined to extend the reasoning in Johnson to the Guidelines, holding that the 

 2 Section 4B1.2(a)(2) was amended in August 2016 to remove the residual or 

“otherwise” clause, as well as to remove burglary and add robbery to the offenses 

enumerated in the Guideline’s text. USSG app. C supp., amend. 798 (2016).
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Guidelines are not subject to a due process vagueness challenge and that the residual 

clause under USSG § 4B1.2(a) is not void for vagueness. 137 S. Ct. at 895. In light of

Beckles, Pittman cannot raise a vagueness challenge to his predicate crime of violence 

under Johnson.

Any potential challenge Pittman could raise to the classification of his predicate

crime of violence also is foreclosed by recent precedent from this Circuit. The district 

court relied on Pittman’s conviction for robbery with a dangerous weapon in applying the 

career offender guideline. We recently held that the North Carolina offense of robbery 

with a dangerous weapon categorically qualifies as a “violent felony” under the ACCA’s 

force clause. See United States v. Burns-Johnson, 864 F.3d 313, 315, 320 (4th Cir.), cert 

denied, 138 S. Ct. 461 (2017). As this court relies on decisions evaluating whether an 

offense qualifies as an ACCA violent felony “interchangeably” with decisions evaluating 

whether an offense qualifies as a Guidelines crime of violence, United States v. MontesFlores, 736 F.3d 357, 363 (4th Cir. 2013) (internal quotation marks omitted), we 

determine that Pittman’s North Carolina conviction for robbery with a dangerous weapon 

equally qualifies as a crime of violence under the force clause of USSG § 4B1.2(a). In 

view of this authority, Pittman cannot raise a meritorious challenge to his enhanced base 

offense level based on his conviction for a crime of violence.

Pittman’s North Carolina conviction for felony possession with intent to sell or 

deliver cocaine also properly qualified as a felony drug offense under the Guidelines. 

Pittman’s sentence for the offense consisted of 10 to 12 months of imprisonment plus a 

9-month term of supervised release. Counsel suggested at sentencing that Pittman’s prior 
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North Carolina felony conviction was not punishable by a term exceeding one year 

because the North Carolina Justice Reinvestment Act of 2011 required that nine months 

of his sentence be spent in post-release supervision. Counsel noted, however, that this 

court addressed this issue in United States v. Barlow, 811 F.3d 133 (4th Cir. 2015). In 

Barlow, we held that the defendant’s convictions for speeding to elude arrest and 

breaking and entering were felony convictions supporting his conviction for being a felon 

in possession of a firearm. We rejected the defendant’s contention that the nine-month 

supervised release term shortened his term of imprisonment to less than a year, finding

that the North Carolina law intentionally includes post-release supervision as part of the 

term of imprisonment. Id. at 138-40. Accordingly, as counsel asserts, Pittman’s 

challenge on this ground is foreclosed. There was no procedural error in the district 

court’s sentence.

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

have found no meritorious issues for appeal. We therefore affirm Pittman’s convictions 

and sentence. This court requires that counsel inform Pittman, in writing, of the right to 

petition the Supreme Court of the United States for further review. If Pittman 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 Pittman. We dispense with oral 

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