United States v. Edward Shane Smallwood , 641 F. App'x 911 ( 2016 )

Case: 14-15096 Date Filed: 01/28/2016 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15096
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-00381-TCB-RGV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee
Cross-Appellant,
versus
EDWARD SHANE SMALLWOOD,
Defendant-Appellant
Cross-Appellee.
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Appeals from the United States District Court
for the Northern District of Georgia
________________________
(January 28, 2016)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
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Edward Shane Smallwood was convicted and sentenced to 120 months’
imprisonment for being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). Smallwood and the Government both challenge the sentence.
Smallwood asserts the sentence is procedurally and substantively unreasonable,
while the Government argues the sentence must be vacated because the district
erroneously found that two of Smallwood’s prior convictions are not separate
offenses under 18 U.S.C. § 924(e)(1). 1 We agree with the Government.
Therefore, we vacate and remand for resentencing. This decision moots the issues
raised by Smallwood in his appeal, and we consequently limit our discussion to the
Government’s claim.
I
A person who violates § 922(g)(1) and has three prior convictions for a
“violent felony or a serious drug offense, or both, committed on occasions different
from one another . . . shall be . . . imprisoned not less than fifteen years.” 18
U.S.C.A. § 924(e)(1) (emphasis added). Smallwood has three prior convictions
that arguably meet the definition of “violent felony.” 2 However, the district court
1
Section 924(e) of Title 18 is commonly known as the Armed Career Criminal Act
(ACCA).
2
We note that the issue of whether Smallwood’s prior convictions actually constitute
violent felonies was not briefed by the parties or considered by the district court. As such, this
issue is not before us. See Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1284–85
(11th Cir. 2003) (“It is the general rule . . . that a federal appellate court does not consider an
issue not passed upon below.”).
2
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did not consider whether the convictions are violent felonies, because it concluded
that two of the convictions—two burglary convictions to which Smallwood pled
guilty—were not “committed on occasions different from one another.” See id.
In determining whether Smallwood committed the burglaries on separate
occasions, the district court had the authority to consider Smallwood’s indictments
and plea hearing transcript for the convictions.3 See Shepard v. United States, 544
U.S. 13, 16, 125 S. Ct. 1254, 1257 (2005) (“[a] court determining the character of
an admitted burglary is generally limited to examining the statutory definition,
charging document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant assented”); Weeks,
711 F.3d at 1259. These documents provide the following information about the
burglaries: Smallwood and two accomplices burglarized two fast-food restaurants;
the restaurants were located in the same strip mall and were directly adjacent to
each other; the group burglarized the restaurants during the same trip to the strip
mall; and one of the accomplices waited in a car while Smallwood and the other
accomplice entered the restaurants. In addition, at the plea hearing for the
burglaries, the trial court asked Smallwood if he personally entered both
restaurants, and Smallwood responded affirmatively. Similarly, the accomplice
3
These types of documents are known as “Shepard documents.” See United States v.
Weeks, 711 F.3d 1255, 1259 (11th Cir. 2013) (per curiam).
3
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who waited in the car during the burglaries testified at the plea hearing that
Smallwood and the other accomplice each went into both restaurants.
Based on this information, the district court determined that Smallwood and
one accomplice personally entered both restaurants. 4 The court also found that
Smallwood committed the burglaries in “immediate succession.” After making
these findings, the court concluded that the burglaries are not separate offenses
under § 924(e)(1). Accordingly, the court held Smallwood has at most two prior
qualifying convictions under § 924(e)(1) and is not eligible for § 924(e)(1)’s
sentencing enhancement.
II
We review de novo whether a defendant’s offenses constitute separate
offenses under § 924(e)(1), and we review for clear error the district court’s
findings of fact related to the imposition of sentencing enhancements. United
States v. Lee, 208 F.3d 1306, 1307 (11th Cir. 2000) (per curiam); United States v.
Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010). Moreover, in reviewing the
district court’s decision, we must consider that “[t]he burden of establishing
evidence of the facts necessary to support a sentencing enhancement falls on the
4
In addition to Smallwood’s Shepard documents, the district court relied on a fact of
which it took judicial notice. The fact is related to the physical location of the restaurants. The
parties do not challenge this finding.
4
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government, and it must do so by a preponderance of the evidence.” United States
v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007).
III
Smallwood’s burglary convictions constitute separate offenses under §
924(e)(1). “Successful completion of one crime plus a subsequent conscious
decision to commit another crime makes that second crime distinct from the first
for the purposes of the ACCA.” United States v. Pope, 132 F.3d 684, 692 (11th
Cir. 1998) (internal quotation marks omitted). In other words, “[s]o long as
predicate crimes are successive rather than simultaneous, they constitute separate
criminal episodes for purposes of the ACCA.” Id. “Distinctions in time and place
are usually sufficient to” render two offenses successive, “even when the gaps are
small, and two offenses are considered distinct if some temporal break occurs
between them.” Weeks, 711 F.3d at 1261 (internal quotation marks omitted).
Here, the district court reviewed Smallwood’s Shepard documents,
addressed the documents at the sentencing hearing, and concluded that Smallwood
personally entered and burglarized two different fast-food restaurants in
“immediate succession.” 5 Although the restaurants were in extremely close
proximity to each other and Smallwood committed one burglary “immediately”
after the other, the critical fact is that he committed the burglaries in succession.
5
Smallwood contests these findings. But, we conclude that they are not clearly
erroneous in light of the information in Smallwood’s Shepard documents.
5
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See id. Thus, the Government met its burden of showing by a preponderance of
the evidence that Smallwood’s burglaries were “committed on occasions different
from one another.” See 18 U.S.C. § 924(e)(1); Weeks, 711 F.3d at 1261.
IV
Given our finding that Smallwood’s burglary convictions qualify as separate
offenses under § 924(e)(1), we vacate Smallwood’s sentence and remand for
proceedings consistent with this opinion.
VACATED AND REMANDED.
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