United States of America v. John Russell Whitt

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4827
JOHN RUSSELL WHITT,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-99-29, CR-99-30, CR-99-31, CR-99-32, CR-99-33, CR-99-34)
Submitted: April 20, 2000
Decided: September 15, 2000
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Walter L. Jones, CLIFFORD, CLENDENIN, O'HALE & JONES,
L.L.P., Greensboro, North Carolina, for Appellant. Walter C. Holton,
Jr., United States Attorney, L. Patrick Auld, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION
PER CURIAM:
John Russell Whitt appeals his convictions and sentences imposed
following his guilty pleas to six counts of armed bank larceny, 18
U.S.C.A. § 2113(d) (West Supp. 1999), and two counts of carrying a
firearm during and in relation to a crime of violence, 18 U.S.C.A.
§ 924(c) (West Supp. 1999). He contends that the indictments were
multiplicitous as to the § 924(c) counts because the firearm was used
or carried only once, and therefore he could not be convicted of two
offenses. He also argues that because the plea to both offenses was
accepted simultaneously, the twenty-five year consecutive sentence
imposed for a "second or subsequent conviction" was improper. We
affirm Whitt's convictions and sentences.
As the government points out, Whitt has waived his multiplicity
claim by failing to raise it below before tendering his guilty plea. See
United States v. Whittington, 26 F.3d 456, 466 (4th Cir. 1994) (citing
United States v. Price, 763 F.2d 640, 643 (4th Cir. 1985)). Whitt
asserted, as cause for relief from his waiver, that he entered his plea
without the effective assistance of counsel and that the United States
had no right to bring the charges to which he pled. See United States
v. Brown, 155 F.3d 431, 434 (4th Cir. 1998). We find that Whitt has
not shown such cause.
Moreover, the district court correctly found "there were clearly six
incidents here separated in time, although in one day at six different
locations. At any one time the defendant could have ceased that activ-
ity. Not only the robbery (sic), but the continuing carrying of the fire-
arm in the presence of Mr. Cross." (JA at 135). Each of the larcenies
at each of the ATM machines constituted a separate crime of vio-
lence. Therefore, Whitt was properly charged with a separate and dis-
tinct § 924(c) count in relation to each of the separate bank larcenies.
See United States v. Luskin, 926 F.2d 372, 377 (4th Cir. 1991) ("As
long as the underlying crimes are not identical . . . then consecutive
section 924(c) sentences are permissible.").
Whitt also argues that, because he entered his guilty pleas and the
court accepted his guilty pleas to both § 924(c) counts simulta-
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neously, there is no "second or subsequent conviction" for which he
could be sentenced to the twenty-five year sentence. We find that
Whitt's plea to both § 924(c) counts and the court's acceptance of
those pleas amount to a first and second conviction under that statute.
Therefore, the district court properly applied the enhanced sentencing
provision in § 924(c)(1)(C)(i). See Deal v. United States, 508 U.S.
129, 130, 133 n.1 (1993) (finding that the enhanced sentence for a
second or subsequent conviction could be imposed in the same judg-
ment as the sentence for the initial § 924(c) conviction).
Whitt attempts to distinguish Deal, arguing that Deal was con-
victed following a jury trial with the jury returning separate verdicts
of guilty, while his § 924(c) convictions were entered simultaneously.
However, Whitt overlooks the "second conviction" part of
§ 924(c)(1)(C)(i). The court accepted his guilty pleas to one § 924(c)
count and to another § 924(c) count--the second conviction. See
United States v. Neal, 976 F.2d 601, 602-03 (9th Cir. 1992) (holding
that "the meaning of `second or subsequent conviction' is plain in the
context of [section 924(c)]").
Because the indictments were not multiplicitous and the district
court properly sentenced Whitt under the enhanced sentencing provi-
sion of § 924(c)(1)(C)(i), we affirm Whitt's convictions and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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