UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4302

MARIO DELAPP,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James C. Turk, District Judge.
(CR-98-36-A)

Submitted: April 20, 2000

Decided: May 22, 2000

Before WILLIAMS and TRAXLER, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Barry L. Proctor, Abingdon, Virginia for Appellant. Robert P.
Crouch, Jr., United States Attorney, S. Randall Ramseyer, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Mario DeLapp appeals his conviction and sentence for possession
of ammunition by a convicted felon, in violation of 18 U.S.C.A.
§ 922(g)(1) (West Supp. 1999). DeLapp's attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), raising
two issues but stating that in his view there are no meritorious issues
for review. Although DeLapp received an extension of time until Jan-
uary 13, 2000 to file a pro se supplemental brief, he has not filed such
a brief. In accordance with the requirements of Anders, we have
examined the briefs and the entire record and find no error. Therefore,
we affirm.

In 1990, DeLapp was convicted in Bristol, Virginia, of three counts
of felony possession of cocaine with intent to distribute. The felonies
occurred on December 6 and 21, 1989, and on February 20, 1990. The
statutory maximum for each offense was more than ten years.

On May 13, 1998, Bristol police responded to a 911 call concern-
ing the discharge of a firearm. A description of the suspect led to
DeLapp's arrest near the scene of the shooting. Police retrieved five
rounds of .357 magnum ammunition from DeLapp's pocket. He sub-
sequently was charged in a one-count indictment with being a felon
in possession of ammunition. He pleaded guilty and received a 180-
month sentence.

On appeal, DeLapp first maintains that the district court erred when
it denied his pro se motion to withdraw his guilty plea. He asserts that
he was coerced into signing the plea agreement because his attorney
advised him that, if the case went to trial, he could receive a life sen-
tence. DeLapp maintains that he believed the plea agreement called
for him to receive a ten-year sentence.

We review the district court's denial of a motion to withdraw a
guilty plea for abuse of discretion. See United States v. Wilson, 81
F.3d 1300, 1305 (4th Cir. 1996). "[F]airness of the Rule 11 proceed-
ing is the key factor in the review of the denial of a motion to with-

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draw a guilty plea, and . . . an appropriately conducted Rule 11
proceeding raises a strong presumption that the plea is final and bind-
ing." Id. at 1306.

The second section of DeLapp's plea agreement set forth the statu-
tory maximum and minimum sentences to which DeLapp was
exposed. Specifically, the agreement stated:

          I understand if it is determined that I have at least three prior
          convictions for serious drug offenses . . ., I will face a man-
          datory minimum sentence of fifteen years imprisonment and
          a maximum sentence of life imprisonment pursuant to[18
          U.S.C. § 924(c) (1994)].

          I understand that if it is determined that I do not have at
          least three prior convictions for serious drug offenses . . .,
          that there will be no mandatory minimum sentence and the
          maximum sentence of imprisonment will be ten years.

(J.A. at 107.) DeLapp affirmed that he had discussed the terms of the
plea agreement with his lawyer, that he was satisfied with his attor-
ney's services, and that he was entering into the agreement of his own
free will.

The transcript of DeLapp's guilty plea proceeding reveals that the
district court complied with Fed. R. Crim. P. 11. Notably, the district
court explained in detail the maximum and minimum sentences that
could be imposed and that the sentencing guidelines applied to the
case. DeLapp stated at the time that he understood the court's expla-
nation. Furthermore, DeLapp asserted that he was satisfied with his
attorney's services. The court accepted the plea, finding that it was
freely and voluntarily made and that there was a factual basis for the
plea.

At sentencing, the district court first considered DeLapp's pro se
motion to withdraw his guilty plea. The court denied the motion,
commenting that, at the Rule 11 proceeding, the question of possible
sentences was discussed and that DeLapp therefore knew what penal-
ties he faced. Given the language in the plea agreement concerning

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possible sentences, the discussion of sentencing at the Rule 11 pro-
ceeding, DeLapp's acknowledgments at that proceeding, and the fact
that the proceeding was properly conducted, we find that the denial
of the motion to withdraw the guilty plea was not an abuse of discre-
tion.

A defendant who violates 18 U.S.C. § 922(g)(1) and has three pre-
vious convictions for a violent felony or a serious drug offense, which
were committed on different occasions, is treated as an armed career
criminal. See 18 U.S.C.A. § 924(e)(1) (West Supp. 1999); U.S. Sen-
tencing Guidelines Manual § 4B1.4(a) (1997). DeLapp contends on
appeal that, because sentencing on the three Bristol charges occurred
on the same date, the convictions should only count as one qualifying
felony. However, under § 924(e), the separate crimes were properly
treated as predicate offenses for sentencing purposes, and DeLapp
was correctly found to have the requisite three previous felony con-
victions to qualify him as an armed career criminal.

Nor were the offenses related. See U.S.S.G.§ 4A1.2(a). They
occurred on separate dates, they were not joined or formally consoli-
dated, and DeLapp received a separate sentence for each offense.
DeLapp did not show that the offenses were part of a common
scheme or plan. Thus, he correctly received three criminal history
points for each of the Bristol convictions. See United States v. Allen,
50 F.3d 294, 296-98 (4th Cir. 1995).

As required by Anders, we have examined the entire record in this
case and find no reversible error. We therefore affirm DeLapp's con-
viction and sentence. 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.
This court requires that counsel inform his client in writing of his
right to petition the Supreme Court of the United States for further
review. If his client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court to withdraw from representation. Counsel's motion
must state that a copy thereof has been served on his client.

AFFIRMED

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