                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4605



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JERRY PARKER FUTRELL,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (7:04-cr-00055-D)


Submitted:   September 7, 2007            Decided:   October 5, 2007


Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. George E. B. Holding, United States
Attorney, Anne M. Hayes, Banumathi Rangarajan, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jerry Parker Futrell pled guilty to possession with

intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)

(2000), and possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (2000).               Futrell appeals his

sentence, arguing the district court erred in sentencing him as an

armed career criminal, in enhancing his sentence in violation of

the Sixth Amendment, and in granting a downward departure less than

what he and the Government requested.               We affirm in part and

dismiss in part.

           Futrell’s base offense level for the grouped offenses was

20,   pursuant    to   U.S.    Sentencing      Guidelines     Manual   (“USSG”)

§ 3D1.2(c) (2004).      He received a four-level increase for use of a

firearm in connection with another felony offense under USSG

§ 2K2.1(b)(6) and a two-level increase for obstruction of justice

based on his failure to appear under USSG § 3C1.1.              Because of his

obstruction      of    justice    and    positive     test      for    use   of

methamphetamines,      the    court   denied   Futrell   an    adjustment    for

acceptance of responsibility. Because Futrell was determined to be

an armed career criminal under 18 U.S.C. § 924(e)(1) (2000), his

total offense level was 34.           His advisory guidelines range was

calculated as 262 to 327 months imprisonment; however, because the

statutory maximum was twenty years’ imprisonment, the advisory




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guidelines       range    was     decreased     to     240    months.          21   U.S.C.

§ 841(b)(1)(C) (2000).

            The Government moved for a § 5K1.1 reduction of Futrell’s

sentence    for    substantial         assistance.           Futrell    argued      for    a

reduction to 71 months’ imprisonment, and the Government argued for

a thirty-five percent reduction from the 240 month guidelines

range.     The district court sentenced Futrell to 228 months of

imprisonment.

            Futrell       first       argues   the    district      court       erred     in

sentencing him as an armed career criminal.                       Futrell does not

dispute    the    fact    of    the    prior   convictions       used    as     predicate

offenses in classifying him as an armed career criminal, but argues

three of the prior convictions constituted only one offense.                              In

considering whether the district court properly designated Futrell

as an armed career criminal, this court reviews the district

court’s legal determinations de novo and its factual findings for

clear error.       United States v. Wardrick, 350 F.3d 446, 451 (4th

Cir. 2003).

            A person who violates § 922(g)(1) and has three prior

convictions       for    violent       felonies      or   serious       drug    offenses

“committed on occasions different from one another” is an armed

career    criminal       subject       to   enhanced      penalties.           18   U.S.C.

§ 924(e)(1) (2000).             In analyzing whether convictions are from

separate and distinct criminal episodes, we consider, among other


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things,      whether   the    time   between    the   crimes    underlying        the

convictions allowed the defendant sufficient time “to make a

conscious and knowing decision to engage in another drug sale.”

United States v. Letterlough, 63 F.3d 332, 337 (4th Cir. 1995).

Separate acts of distribution that occur on different days or even

at different times on the same day constitute separate criminal

episodes.      See id. at 334-37; see also United States v. Samuels,

970 F.2d 1312, 1315 (4th Cir. 1992).

              Futrell was classified an armed career criminal under

§   924(e)    based    on    his   prior   North   Carolina    convictions        for

conspiracy to traffic cocaine in January 1988, in Duplin County;

conspiracy to traffic cocaine on March 28, 1988, in Columbus

County; and conspiracy to sell and deliver cocaine from April 10 to

April 17, 1988, in New Hanover County; and his federal conviction

for possession with intent to distribute 260 grams of marijuana in

1991.     He argues the three North Carolina convictions constitute

one criminal episode.         However, as Futrell concedes, the offenses

occurred in three different counties in North Carolina.                    Further,

the intervals between the offenses allowed Futrell ample time to

make conscious and knowing decisions to engage in the subsequent

criminal     acts.     We    find    the   district   court    did   not    err   in

determining Futrell’s prior convictions were separate offenses,

each countable as a predicate offense for purposes of classifying

him an armed career criminal under § 924(e).


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           Futrell’s argument that the district court erred in

sentencing him as an armed career criminal based on facts not

alleged in the indictment or found by a jury is foreclosed by

United States v. Thompson, 421 F.3d 278, 282-83 (4th Cir. 2005),

cert. denied, 126 S. Ct. 1463 (2006), in which we held that

sentencing courts may rely on prior convictions to invoke the

enhancement provided by § 924(e)(1), even if the prior convictions

were not charged in the indictment or found by a jury, so long as

no facts extraneous to the fact of conviction need be decided.

     Next, Futrell challenges the district court’s enhancements to

his sentence for use of a firearm in connection with another felony

and obstruction of justice, arguing the facts on which they were

based were not admitted by him or found beyond a reasonable doubt.

As the Government points out in its brief, it is undisputed that

these claims are barred by the waiver of appellate rights contained

in Futrell’s plea agreement.     See United States v. Blick, 408 F.3d

162, 168-69 (4th Cir. 2005)

           Finally, Futrell seeks to contest the extent of the

district   court’s   downward   departure   based   on   his   substantial

assistance. We lack jurisdiction to review a defendant’s challenge

to the extent of a downward departure.      See United States v. Hill,

70 F.3d 321, 324 (4th Cir. 1995).    Therefore, we dismiss as to this

claim.




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          Accordingly, we affirm Futrell’s sentence and dismiss his

claim seeking review of the extent of the downward departure

imposed by the district court.    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 IN PART;
                                                 DISMISSED IN PART




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