                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4440


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DERICK MONTIQUE HARPER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:13-cr-00272-D-1)


Submitted:   July 28, 2016                 Decided:   September 9, 2016


Before MOTZ, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant.   John Stuart Bruce, Acting United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Derick   Montique   Harper   pled   guilty   to   possession   of   a

firearm by a convicted felon.          The district court applied the

Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (ACCA), and

sentenced Harper to 144 months’ imprisonment.          On appeal, Harper

argues that the district court erred by denying him funds to

secure the expert of his choice and by applying the ACCA based

on a finding that a series of burglaries and kidnappings that he

committed on February 24, 1997, constituted multiple predicates. 1

We affirm.



     1 Harper also asserts that the trial court should have
granted him a greater departure or variance based on factors
such as his military service and post-traumatic stress disorder,
but concedes that this claim is not viable unless the Court
finds that the ACCA is inapplicable. Because the district court
properly applied the ACCA, this argument warrants no further
analysis.

     Harper also argues that the district court erred by
imposing a 2-level enhancement for obstruction of justice under
USSG § 3C1.1 based on the risk posed by his flight.      But the
district court imposed a substantial risk enhancement under USSG
§ 3C1.2, not an obstruction of justice enhancement under USSG
§ 3C1.1.   Moreover, this enhancement did not affect Harper’s
Sentencing Guidelines range, which was determined by the armed
career criminal Guideline and then adjusted upward to the
statutory minimum. See USSG §§ 4B1.4(b)(3)(B), 5G1.1(b).

     In its response brief, the Government asserts that Harper’s
challenges to the § 3C1.2 enhancement and the denial of a
greater departure or variance are barred by his appellate
waiver.    Because the only claims for which the Government
asserts the waiver are plainly meritless, we do not reach the
issue of whether the waiver is valid and enforceable.



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       On Harper’s motion, the district court had Harper evaluated

by     Dr.   Manuel       E.     Gutierrez,       a    prison           psychologist,        who

provisionally diagnosed him with post-traumatic stress disorder

(PTSD).       Believing        this    evaluation       to    be    inadequate,           Harper

sought funds to retain Dr. Richard Weisler.                              The court denied

this    request     and   instead      ordered        Dr.    Gutierrez         to   conduct    a

second evaluation.             Harper challenges this ruling on appeal, and

we   review    it     for      abuse    of    discretion.               United      States    v.

Hartsell, 127 F.3d 343, 349 (4th Cir. 1997).                              Under 18 U.S.C.

§ 3006A(e) (2012), indigent defendants are entitled to funds for

expert services necessary to their adequate defense.                                Id.    “[A]

defendant who alleges that a denial of [§ 3006A(e)] funds has

violated due process must demonstrate by clear and convincing

evidence that the denial resulted in actual prejudice to the

defense.”     Id.      Because Harper has not shown prejudice from his

examination       only    by     Dr.   Gutierrez        and       not    Dr.     Weisler,     we

conclude that he has failed to establish that the district court

abused its discretion.

       Harper also argues that his February 1997 offenses do not

constitute separate ACCA predicates.                         “We review de novo the

district     court’s      legal    conclusion         that    . . .       [a     defendant’s]

qualifying     convictions         were      committed       on    occasions        different

from one another.”              United States v. Span, 789 F.3d 320, 325

(4th Cir. 2015) (internal quotation marks omitted).                                 “However,

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we   review    the    district       court’s         factual    findings,        and   its

judgment    regarding    factual         disputes,      for     clear    error.”       Id.

“[C]lear error occurs when a district court’s factual findings

are against the clear weight of the evidence considered as a

whole.”    Id. (internal quotation marks omitted).

     We have come to rely on five factors to determine
     whether predicate ACCA offenses were committed on
     different occasions: (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.

United States v. Linney, 819 F.3d 747, 751 (4th Cir. 2016); see

United States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995)

(setting forth factors).

     Having    reviewed       the   record,       we    agree    with     the    district

court that Harper’s February 1997 offenses, which occurred at

different     times    and    in    at    least      three     different    locations,

constituted     at    least    three      distinct       ACCA     predicates.          See

Linney, 819 F.3d at 752-53 (finding separate predicates under

similar circumstances).             Although Harper argues that his PTSD

rendered him psychologically incapable of ceasing his criminal

conduct between offenses, the evidence does not indicate that

Harper’s    decision     to    continue        his     spree    was     unconscious     or

unknowing,    and     Harper’s      guilty     pleas     establish        that    he   had

                                           4
sufficient mens rea to convict him of kidnapping, burglary, and

breaking     and     entering.      Accordingly,             we    conclude   that     the

district court did not err in finding that Harper’s February

1997 offenses occurred on at least three separate occasions.

     Next,      Harper    argues    that        the       ACCA’s     requirement     that

predicates      be    “committed     on        occasions          different   than     one

another”   is      unconstitutionally          vague      under     Johnson   v.   United

States, 135 S. Ct. 2551 (2015). 2                The Johnson Court found that

the residual clause of the ACCA’s definition of “violent felony”

was unconstitutionally vague because the Supreme Court’s many

attempts to devise a workable standard for applying that clause

had failed.        135 S. Ct. at 2557-60.             In contrast, this Court has

long applied the Letterlough factors with none of the problems

cited in Johnson.         See, e.g., Linney, 819 F.3d at 751.                        As a

result, we conclude that Johnson does not call into question the

validity of the ACCA’s requirement that predicate offenses be

committed on different occasions.

     Finally,        Harper   has    filed           a     notice     of   supplemental

authorities     in    which   he   notes       the       Supreme    Court’s   ruling    in

Mathis v. United States, 136 S. Ct. 2243 (2016).                           In light of

     2 Harper seeks to assert an Eighth Amendment challenge to
the ACCA, but such a challenge has already been rejected by this
court, and the fact of Harper’s PTSD does not alter this
analysis.   United States v. Presley, 52 F.3d 64, 68 (4th Cir.
1995).



                                           5
Mathis,     Harper       seeks       to    retract     his    concession         that     North

Carolina second-degree kidnapping is a violent felony and to

challenge the use of this offense as an ACCA predicate.                                     The

Government       has     moved    to      strike     this    request,      and   Harper     has

moved    for    leave     to     file     a    supplemental        brief    asserting      this

issue.      We agree with the Government that Harper waived this

issue by expressly disclaiming it at sentencing.                             United States

v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014) (“A party who

identifies        an    issue,    and         then   explicitly      withdraws       it,   has

waived      the        issue.”       (internal        quotation          marks     omitted)).

Moreover, even if this issue were deemed forfeited rather than

waived, it would not entitle Harper to relief because any error

in this respect is not plain.                        Compare Mathis, 136 S. Ct. at

2249, 2257 (holding that where statute provides “various factual

means of committing a single element,” as opposed to multiple

alternative elements, courts may not apply modified categorical

approach to determine which of those factual means defendant

used) with United States v. Flores-Granados, 783 F.3d 487, 492-

98 (4th Cir.) (applying categorical approach to hold that North

Carolina       second-degree          kidnapping       is    categorically         crime    of

violence       under     USSG    §     2L1.2     because      it    constitutes         generic

kidnapping), cert. denied, 136 S. Ct. 224 (2015).

      Accordingly, we affirm the judgment of the district court.

We   deny   as     moot    the    Government’s          motion      to    strike    and    deny

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Harper’s motion for leave to file a supplemental brief because

Harper has waived the issue he now seeks to assert.             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




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