                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4714


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THOMAS TYRONE NORMAN,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   Henry M. Herlong, Jr., Senior
District Judge. (7:06-cr-00983-HMH)


Submitted:   September 4, 2009            Decided:   January 24, 2012


Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant.      William N. Nettles, United
States Attorney, Maxwell Cauthen, III, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Thomas Tyrone Norman pled guilty to possession of a

firearm after having been convicted of a felony, in violation of

18     U.S.C.   §   922(g)(1)       (2006);    possession        with     intent   to

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

(2006); and possession of a firearm during and in relation to a

drug    trafficking      crime,   in    violation      of   18   U.S.C.    §   924(c)

(2006).     The district court sentenced Norman as an armed career

criminal pursuant to 18 U.S.C. § 924(e) (2006), to a total of

274 months’ imprisonment.               Norman’s counsel filed an opening

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating that, in his view, there are no meritorious issues for

appeal    but    questioning      whether     the   sentence       is    reasonable.

Norman has filed pro se supplemental briefs raising additional

sentencing issues.

            After     our   initial      review     pursuant      to     Anders,   we

directed the parties to file supplemental briefs addressing the

adequacy of the district court’s explanation for the sentence

imposed.        Norman    asserts      that   the   district      court    committed

procedural sentencing error by failing to explain adequately why

it imposed a sentence near the low end of the Guidelines range.

The    Government     argues,     however,      that    the      court    adequately

explained its sentence and that, even if the court procedurally

erred, any error is harmless because the record does not suggest

                                          2
that a fuller explanation would have resulted in a different

sentence.         Having carefully reviewed the record in light of the

parties’ supplemental briefs, we affirm.

                 We    review        a    sentence          for    reasonableness         under     an

abuse-of-discretion standard.                          Gall v. United States, 552 U.S.

38, 51 (2007).               This review requires appellate consideration of

both     the      procedural              and     substantive             reasonableness      of     a

sentence.             Id.     After determining whether the district court

properly calculated the defendant’s advisory Guidelines range,

we    must   assess          whether       the    district         court     considered      the    18

U.S.C.       §    3553(a)           (2006)        factors,         analyzed        any    arguments

presented         by        the     parties,       and       sufficiently          explained       the

selected sentence.                Id. at 49-50; see United States v. Lynn, 592

F.3d 572, 576 (4th Cir. 2010) (“[A]n individualized explanation

must    accompany           every        sentence.”).             Finally,    if    there    are    no

procedural errors, we review the substantive reasonableness of

the    sentence,            “tak[ing]           into       account    the     totality      of     the

circumstances.”               United States v. Hargrove, 625 F.3d 170, 183

(4th     Cir.         2010)       (internal        quotation         marks     omitted),         cert.

denied, 132 S. Ct. 292 (2011).

                 Before addressing the adequacy of the district court’s

explanation           for     the    chosen       sentence,          we    begin   with     Norman’s

challenges in his pro se briefs to his designation as an armed

career criminal under § 924(e) and as a career offender under

                                                       3
U.S. Sentencing Guidelines Manual § 4B1.1 (2006), 1 based upon his

prior convictions for failure to stop for a blue light, escape,

possession        with     intent      to    distribute      marijuana,   assault      and

battery of a high and aggravated nature (“ABHAN”), pointing a

firearm, and possession with intent to distribute crack cocaine.

Norman failed to object to the armed career criminal and career

offender         classifications        in    the    district    court.       Thus,    our

review is for plain error.                  See United States v. Slade, 631 F.3d

185,       189   (4th     Cir.)   (discussing         standard   of    review),     cert.

denied, 131 S. Ct. 2943 (2011).

                 Norman    correctly         notes    that     his    convictions      for

failure to stop for a blue light do not qualify as violent

felonies for purposes of § 924(e).                    See United States v. Rivers,

595    F.3d      558,     560   (4th    Cir.    2010)     (holding    “that    under    no

circumstance        is     a    violation      of    South   Carolina’s    blue     light

       1
       To qualify as an armed career criminal, Norman must have
“three previous convictions . . . for a violent felony or a
serious drug offense, or both, committed on occasions different
from one another.”     18 U.S.C. § 924(e)(1); see 18 U.S.C.
§ 924(e)(2)(B) (defining violent felony). To be designated as a
career offender, Norman must have been at least eighteen years
old when he committed the instant crimes of violence or
controlled substance offenses and have “at least two prior
felony convictions of either a crime of violence or a controlled
substance offense.”   USSG § 4B1.1(a); USSG § 4B1.2(a) (defining
crime of violence).     Because of the “nearly identical . . .
language” in § 4B1.2 and § 924(e), “precedents evaluating the
[Armed Career Criminal Act (“ACCA”)] apply with equal force to
[Guidelines section] 4B1.2.” United States v. Jenkins, 631 F.3d
680, 683 (4th Cir. 2011) (internal quotation marks omitted).



                                               4
statute a violent felony under the ACCA”).                          Norman also asserts

that       his   prior     escape    conviction        is    not    a    violent       felony.

Applying the modified categorical approach, see United States v.

Bethea, 603 F.3d 254, 256-58 (4th Cir. 2010), we conclude that,

on the record currently before us, the escape conviction should

not have been used as a predicate violent felony to classify

Norman as an armed career criminal.

                 Next, Norman contends that his prior state conviction

for    possession        with    intent     to    distribute        marijuana      did    not

qualify as a serious drug offense because he faced a maximum

penalty of only five years.                   See 18 U.S.C. § 924(e)(2)(A)(ii)

(defining        serious    drug    offense       as   a    state    offense     having    “a

maximum term of imprisonment of ten years or more”).                               In light

of our decision in United States v. Simmons, 649 F.3d 237, 241-

47     (4th      Cir.    2011)     (en   banc),        we   agree       that    this     prior

conviction         did   not     qualify    as     a    serious      drug      offense    for

purposes of § 924(e).

                 Although      Norman      concedes         that     his       prior     ABHAN

conviction constitutes a violent felony, 2 he contends that his


       2
       Assuming, without deciding, that we apply the modified
categorical approach in determining whether Norman’s ABHAN
conviction constitutes a violent felony, see United States v.
Spence, 661 F.3d 194, 197-200 (4th Cir. 2011) (applying modified
categorical approach to ABHAN conviction for purposes of
enhancing sentence under 18 U.S.C. § 2252A(b)(2) (2006)), we
agree with Norman that his ABHAN conviction is a predicate
(Continued)
                                              5
offense     of    pointing       a       firearm       did    not     occur    on    an   occasion

different from the ABHAN offense because he was sentenced for

those convictions on the same day and, therefore, that those

convictions should be counted as a single offense.                                  His claim is

foreclosed by our decision in United States v. Samuels, 970 F.2d

1312, 1315 (4th Cir. 1992) (holding that “[n]othing in § 924(e)

or    the   Guidelines       suggests         that       offenses         must      be    tried    or

sentenced        separately          in    order        to     be     counted       as    separate

predicate offenses”); see United States v. Tucker, 603 F.3d 260,

265   (4th       Cir.    2010)       (discussing         factors         courts     consider       in

determining whether offenses are separate and distinct criminal

episodes).              Because          Norman        has     three       qualifying            prior

convictions        (pointing         a    firearm, 3         ABHAN,      and   possession        with

intent      to    distribute         crack     cocaine),            we    conclude        that    the

district court did not err in classifying Norman as an armed

career criminal. 4




offense for purposes of § 924(e).     The record reflects that
Norman shot Eric Bay in the left side of the chest on September
18, 2000.   On the same day, Norman pointed a firearm at Katy
Bay.
       3
       See United States v. Thompson, 891 F.2d 507, 509-10 (4th
Cir. 1989) (holding that pointing a firearm qualifies as crime
of violence under § 4B1.2).
       4
       Even if the conviction for pointing a firearm or ABHAN did
not qualify as a predicate violent felony, Norman still would be
(Continued)
                                                   6
               Norman also claims in his pro se briefs that he should

not    have     received     a     consecutive          sentence   for         the    § 924(c)

offense when he faced a fifteen-year mandatory minimum sentence

under    § 924(e)       on   the    § 922(g)        conviction.            His       claim   is

foreclosed by the Supreme Court’s decision in Abbott v. United

States, 131 S. Ct. 18, 23 (2010) (holding “that a defendant is

subject   to     a   mandatory,      consecutive          sentence     for      a    §   924(c)

conviction, and is not spared from that sentence by virtue of

receiving a higher mandatory minimum on a different count of

conviction”).        To the extent Norman asserts that he should be

resentenced in light of Kimbrough v. United States, 552 U.S. 85

(2007), he is not entitled to relief as his Guidelines range was

determined based upon his status as an armed career criminal and

a   career     offender      and   not   by       the   quantity     of    crack         cocaine

involved in the drug distribution offense.

               Having    concluded       that      the    district        court       properly

classified Norman as an armed career criminal and established a

Guidelines range of 262 to 327 months, see USSG § 4B1.1(c)(2) &

cmt.    n.3,    4B1.1(c)(3),        we   turn      to    the   issue      of    whether      the

district court adequately explained its reasons for imposing a

274-month sentence.           By relying on § 3553(a) and arguing “‘for a



classified as a career offender, and his Guidelines range would
be the same.



                                              7
sentence   different   than    the   one   ultimately   imposed,’”    Norman

preserved his challenge to the adequacy of the district court’s

explanation.     United States v. Powell, 650 F.3d 388, 395 (4th

Cir. 2011) (emphasis omitted) (citing Lynn, 592 F.3d at 578),

cert. denied, 132 S. Ct. 350 (2011).              Thus, “we review the

district court’s sentencing procedure for abuse of discretion,

and must reverse if we find error, unless . . . the error was

harmless.”     Lynn, 592 F.3d at 581.

           Our review of the record leads us to conclude that the

district court failed to place on the record an individualized

assessment of the § 3553(a) factors relating to Norman. 5            See id.

at 584 (“[T]he court must offer some ‘individualized assessment’

justifying the sentence imposed and rejection of arguments for a

higher or lower sentence based upon § 3553.”) (quoting Gall, 552

U.S. at 50).      Although the district court procedurally erred,

the Government has demonstrated that the error is harmless.             See

Lynn, 592 F.3d at 585.        The district court indicated that it had

considered the relevant § 3553 factors in light of the arguments

and evidence presented at sentencing.          The arguments for a lower

sentence advanced by Norman were less than compelling in light

of his admission that he had lied to the court at the plea

     5
       We note, however, that the district court did not have the
benefit of Gall, Lynn, and their progeny when it sentenced
Norman.



                                      8
hearing and his long criminal history and violations of bond,

which the Government explained impacted its decision not to move

for   a   downward     departure      based      upon      substantial   assistance.

Thus,     taking   the    record      as   a    whole,      we   conclude   that   the

district    court’s      procedural        error    is     harmless.     See    United

States v. Boulware, 604 F.3d 832, 840 (4th Cir. 2010) (stating

that, where record suggests district court considered arguments

for lower sentence and weakness of defendant’s arguments, “the

notion that having to explain its analysis further might have

changed the district court’s mind . . . is simply unrealistic

. . . , and remand for resentencing would be a pointless waste

of resources”).

             Finally, with regard to the substantive reasonableness

of Norman’s sentence, we presume that a sentence imposed within

the properly calculated Guidelines range is reasonable.                        Rita v.

United States, 551 U.S. 338, 347 (2007).                      Norman has failed to

rebut that presumption.               Thus, his sentence is substantively

reasonable.

             In accordance with Anders, we have reviewed the entire

record     in   this     case   and    have        found    no   other   potentially

meritorious issues for appeal.                 We therefore affirm the district

court’s judgment.         This court requires that counsel inform his

client, in writing, of the right to petition the Supreme Court

of the United States for further review.                    If the client requests

                                            9
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 the client.                            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




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