United States v. Jenord Brown , 404 F. App'x 370 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 03, 2010
No. 09-14868 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-20756-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JENORD BROWN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 3, 2010)
Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Jenord Brown appeals his 180-month concurrent
sentences after he pleaded guilty to 1) two counts of possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C. sections 922(g)(1) and
924(e)(1) (“Group 1”) and 2) two counts of possession of a controlled substance, in
violation of 21 U.S.C. section 844(a) (“Group 2”).1 No reversible error has been
shown; we affirm.
I. Background
Brown argued before the district court -- and argues again on appeal -- that it
was error to enhance his sentence under 18 U.S.C. section 924(e)(1) because he did
not have the requisite number of prior convictions for the ACCA to apply. First,
he argues that three of his prior convictions (which he concedes constituted violent
felonies under the ACCA) should have been considered as only one offense: they
took place within a nine-day span, were consolidated for sentencing, and were part
of a common scheme or plan. Second, Brown contends that, under the ACCA, one
of his prior convictions should not have counted as a predicate conviction where
1
Brown does not appeal his sentence for the Group 2 counts.
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adjudication of guilt had been withheld.
II. Standard of Review
We review questions of statutory interpretation de novo, including whether
offenses are “committed on occasions different from one another” for purposes of
the ACCA. United States v. Lee, 208 F.3d 1306, 1307 (11th Cir. 2000).
III. Discussion
The district court’s sentence is without error. The district court was correct
to conclude that Brown possessed the necessary three previous convictions for a
violent felony. The ACCA provides for a fifteen-year mandatory minimum
sentence where a person violates 18 U.S.C. § 922(g) and has three previous
convictions for a violent felony or a serious drug offense, or both, committed on
different occasions. See 18 U.S.C. § 924(e). We said in Pope that where
“predicate crimes are successive rather than simultaneous, they constitute separate
criminal episodes for purposes of the ACCA.” United States v. Pope, 132 F.3d
684, 692 (11th Cir. 1998) (concluding that consecutively burglarizing buildings
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200 yards apart constituted separate crimes for ACCA purposes); see also United
States v. Lee, 208 F.3d 1306, 1307 (11th Cir. 2000) (looking to whether the
defendant possessed a meaningful opportunity to desist activity before committing
a later offense).
Here, the three predicate crimes relied on by the district court for triggering
the ACCA mandatory-minimum sentence were committed successively and, with
regard to time, were distinct.2 Committing the crimes over a nine-day span, Brown
possessed sufficient opportunity to desist but declined to do so. Brown’s
arguments about the crimes constituting a common scheme and about the offenses’
consolidation for sentencing do not alter ACCA’s clear statutory requirement. See
18 U.S.C. § 924(e)(1) (requiring prior convictions arising from offenses
“committed on occasions different from one another”).
We reject Brown’s argument that the conviction for which he never received
a guilty adjudication should not count. See United States v. Santiago, 601 F.3d
1241, 1242 (11th Cir. 2010) (concluding that “a guilty plea followed by a sentence
of probation and a withholding of adjudication qualifies under Florida law as a
predicate conviction for the purpose of enhancing a defendant’s sentence under the
ACCA”).
2
Defendant does not contest that the three crimes qualified as “violent felon[ies]” under
section 924(e)(1).
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AFFIRMED.
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