United States v. Troy Mellott , 561 F. App'x 446 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0241n.06
Case No. 13-6171
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Mar 31, 2014
UNITED STATES, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
TROY MELLOTT, ) KENTUCKY
)
Defendant-Appellant. )
)
BEFORE: COLE and SUTTON, Circuit Judges; CLELAND, District Judge.*
SUTTON, Circuit Judge. The federal government charged Troy Mellott with being a
felon in possession of a firearm. He pled guilty to the charge. At sentencing, the district court
determined that he was an armed career criminal, requiring a mandatory minimum sentence of
fifteen years. On appeal, Mellott challenges his sentence. We affirm.
Under 18 U.S.C. § 924(e)(1), a person who possesses a firearm and has “three previous
convictions . . . for a violent felony” is an armed career criminal subject to a fifteen-year
mandatory minimum. Mellott concedes that he has three previous violent felony convictions:
two for burglary in 1996 and one for breaking and entering in 2004. He argues that he
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting by
designation.
Case No. 13-6171, United States v. Mellott
committed the two burglaries on the same occasion, making him a violent felon just twice over
and making him subject to a ten-year mandatory minimum.
We disagree. Mellott committed the 1996 burglaries on different occasions. The arrest
records show that the police arrested Mellott for burglary of a dwelling twice—once on April 5,
1996 for a violation on an unspecified date, and once on April 6, 1996 for a violation on April 2,
1996 at 9:30 a.m. The state court indictment charged him with the burglary of a dwelling and
theft of cash on April 1, 1996, and the burglary of the same dwelling and theft of electronics and
other personal property on April 2, 1996—four counts in all. He pled guilty to all four counts.
His two seven-year sentences for the burglary counts and two two-year sentences for the theft
counts ran “concurrently for a total of seven years.” R.12-2 at 4. These records—two burglary
arrests, two burglary counts, two burglary convictions and two burglary sentences—confirm that
Mellott committed two distinct burglaries. “[I]t is possible to discern the point at which the first
offense [was] completed” (at least by midnight on April 1, 1996) “and the subsequent point at
which the second offense beg[an]” (9:30 a.m. on April 2, 1996), establishing that Mellott
committed the burglaries on different occasions. United States v. Hill, 440 F.3d 292, 297 (6th
Cir. 2006).
To this way of thinking about his sentence, Mellott offers two responses. He first points
to the beginning of the state court judgment, where the court summarized each charge in the
indictment as occurring on “April 1 and 2, 1996.” R.12-2 at 3. Yet, as the district court correctly
explained, Mellott pled guilty to the indictment, which included two charges for two burglaries
on two different dates resulting in the theft of two different sets of property, and his guilty plea
led to two counts of conviction for burglary. The one-sentence summary of the charges in the
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Case No. 13-6171, United States v. Mellott
judgment does not cut against the district court’s finding that Mellott committed the burglaries at
two different times.
Mellott next points to the end of the state court judgment, where the court set his
sentences to run concurrently. Yet the consolidation of offenses “for sentencing or for
concurrent sentences” is “immaterial for ACCA enhancement purposes . . . , so long as the
separate offenses for which the defendant was convicted occurred at different times and/or
places.” United States v. Martin, 526 F.3d 926, 939 (6th Cir. 2008).
Mellott separately questions the district court’s finding that he stole the relevant firearm.
He concedes, however, that this finding and its effect on his guidelines range do not come into
play if the mandatory minimum sentence for armed career criminals applies. It does, making this
argument irrelevant.
For these reasons, we affirm the judgment of the district court.
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