United States v. Conrad Blair , 734 F.3d 218 ( 2013 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-4427
_____________
UNITED STATES OF AMERICA
v.
CONRAD CLINTON BLAIR,
Appellant
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-11-cr-00108-001)
District Judge: Honorable David S. Cercone
_______________
Argued September 11, 2013
Before: RENDELL, JORDAN and GREENAWAY, JR.,
Circuit Judges.
(Filed: November 4, 2013)
_______________
Akin Adepoju, Esq.
Renee Pietropaolo, Esq. [ARGUED]
Office of the Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant
Rebecca R. Haywood, Esq.
Laura S. Irwin, Esq. [ARGUED]
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Conrad Clinton Blair appeals a sentence imposed by
the United States District Court for the Western District of
Pennsylvania. His appeal implicates a sentencing
enhancement under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), and, in particular, presents
the question of what are prior convictions for “violent
felon[ies] … committed on occasions different from one
another… .” Because we conclude that Blair has at least
three prior convictions for felonies committed on separate
occasions, we will affirm.
2
I. Background
In 2011, Blair participated in the sale of guns, even
though his criminal past rendered him a person prohibited by
federal law from possessing a firearm. After his arrest, he
pled guilty to two counts of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1) (making it
“unlawful for any person … who has been convicted in any
court of[] a crime punishable by imprisonment for a term
exceeding one year … to … possess … any firearm”).
A presentence investigation report (“PSR”)
recommended that Blair be sentenced under ACCA, which
mandates a minimum 15-year prison sentence for anyone
possessing a firearm after “three previous convictions … for a
… violent felony … committed on occasions different from
one another.” 18 U.S.C. § 924(e). Blair had pled guilty in
Pennsylvania state court on September 14, 1987, to one count
of third-degree robbery in the form of “physically tak[ing] or
remov[ing] property from the person of another by force
however slight,” in violation of 18 Pa. Cons. Stat. Ann.
§ 3701(a)(1)(v), and to one count of armed burglary, in
violation of 18 Pa. Cons. Stat. Ann. § 3502. On May 6, 1991,
he had again pled guilty,1 this time to four counts of first-
degree robbery in violation of 18 Pa. Cons. Stat. Ann. § 3701.
The charging documents accompanying the 1991 robbery
convictions list the counts charged and, for each count, state
that the “[f]elony committed or threatened” was “[a]ggravated
1
The District Court mistakenly indicated that the
convictions were entered on May 6, 1990, instead of May 6,
1991.
3
[a]ssault.” (App. at 137, 154, 171, 192.) The PSR
recommended that each of the 1991 robbery counts be treated
as a separate criminal episode committed on a separate
occasion. The PSR thus calculated that, for purposes of
ACCA, Blair had six prior convictions, which made him
subject to the mandatory minimum sentence provided in that
statute. Because the advisory Guidelines range fell below the
mandatory minimum, that minimum of 15 years (180 months)
became the recommended sentence.
Blair contested the applicability of ACCA, specifically
arguing as to his 1987 convictions that the burglary
conviction was not for the generic offense of burglary
required under ACCA and that robbery by force however
slight is not a violent felony under ACCA.2 Of most
pertinence for this appeal, he also argued that his 1991
robbery convictions qualified as, at most, one violent felony
under ACCA, because they were entered on the same day and
the charging documents did not conclusively establish that the
2
Blair argues that his 1987 burglary indictment
charged only burglary generally, which under the
Pennsylvania statute could include entry into a vehicle or
yard, and therefore, “the conviction did not necessarily rest on
all elements of generic burglary” and so is not an ACCA
predicate. (Appellant’s Opening Br. at 28.) As to the 1987
robbery conviction, he says that robbery by force however
slight, 18 Pa. Cons. Stat. Ann. § 3701(a)(1)(v), does not
qualify as a “violent felony” under ACCA because it “does
not have force … as an element, [and it] does not otherwise
involve conduct that presents a serious potential risk of
physical injury to another.” (Appellant’s Opening Br. at 29.)
We make no comment on either of those arguments.
4
crimes were “committed on occasions different from one
another.” The District Court reviewed Blair’s prior
convictions and his objections and determined that his 1987
robbery and burglary convictions were for violent felonies.
The Court also held that Blair’s four 1991 robbery
convictions “at a minimum” established three separate violent
felonies under ACCA. (App. at 18.) “Giving [Blair] the
benefit of the doubt,” the District Court did not count two of
the convictions separately because those two robberies were
committed on the same day. (Id.) It thus held that Blair had
“no fewer” than five predicate violent felonies under ACCA,
i.e., two 1987 convictions and three 1991 convictions, and so
applied the ACCA mandatory minimum. (App. at 18-19.)
After the District Court sentenced Blair to 180 months in
prison and three years of supervised release, this timely
appeal followed.
II. Discussion3
Blair continues to maintain that his 1987 Pennsylvania
convictions for burglary and robbery do not qualify as ACCA
predicates because they are not categorically violent felonies.
He also again argues that his 1991 robbery convictions cannot
be considered to have been “committed on occasions different
from one another,” 18 U.S.C. § 924(e)(1), because he pled
3
The District Court had subject matter jurisdiction
over this case pursuant to 18 U.S.C. § 3231. We exercise
jurisdiction under 28 U.S.C. § 1291 and, to the extent Blair
says his sentence was imposed in violation of law, under 18
U.S.C. § 3742. “This appeal presents purely legal questions,
over which we exercise plenary review.” United States v.
Jones, 332 F.3d 688, 690 (3d Cir. 2003).
5
guilty to those charges on the same day. He has, in addition,
advanced a new argument based on the Supreme Court’s
recent holding in Descamps v. United States, 133 S. Ct. 2276
(2013), a case which clarifies the analytical approach that
sentencing courts must use to determine if a prior conviction
is a predicate offense under ACCA. Blair now contends that
his 1991 robbery convictions are not categorically violent
felonies under ACCA. Moreover, he says that the Supreme
Court’s recent decision in Alleyne v. United States, 133 S. Ct.
2151 (2013), holding that facts that increase a mandatory
minimum sentence must be submitted to a jury, bears on our
analysis. While he does not expressly argue that he was
entitled to a jury determination under Alleyne with respect to
the predicate offenses for his mandatory minimum sentence,
he does imply that Alleyne should guide our decision.
We conclude that at least three of Blair’s 1991 robbery
convictions qualify under ACCA as violent felonies
committed on separate occasions. As a result, his 1991
robbery convictions alone qualify him for the ACCA
enhancement, and we will affirm the District Court’s
application of that enhancement without considering Blair’s
1987 robbery or burglary convictions. See United States v.
Berrios, 676 F.3d 118, 129 (3d Cir. 2012) (“We may affirm
the District Court on any ground supported by the record.”).
A. “Violent Felony”
On May 6, 1991, Blair pled guilty to committing first-
degree felony robbery in violation of Pennsylvania law.
(App. at 137-38, 154-55, 171-72, 192-93.) The statute in
question provides in relevant part:
6
(1) A person is guilty of robbery if, in the
course of committing a theft, he:
(i) inflicts serious bodily injury upon
another;
(ii) threatens another with or
intentionally puts him in fear of
immediate serious bodily injury;
(iii) commits or threatens immediately to
commit any felony of the first or second
degree … .
18 Pa. Cons. Stat. Ann. § 3701(a)(1)(i)-(iii).
Robberies under subsections (i), (ii), and (iii) of
§ 3701(a)(1) are defined as felonies in the first-degree. Id. at
§ 3701(b). Blair pled to four charges of first-degree felony
robbery in four separate plea agreements. Each of Blair’s
signed guilty pleas includes the notation “F1” (indicating
first-degree) “Robbery.” (See, e.g., App. at 138.) For each
guilty plea, there is a corresponding charging document.
Each charging document includes counts that are framed in
the same language as the subsections of § 3701(a)(1). At the
bottom of each charging document, there is a line to indicate
the “[f]elony committed or threatened,” and “[a]ggravated
[a]ssault” is noted on that line. 4 (App. at 137, 154, 171, 192.)
The “felony committed or threatened” language is specifically
akin to the language of § 3701(a)(1)(iii), which, again, makes
it a first-degree felony to commit a robbery during the course
4
In addition, at the bottom of each charging document
the name of the victim, the type of property taken, and the
value of the property taken are described.
7
of which one “commits or threatens immediately to commit
any felony of the first or second degree … .” 18 Pa. Cons.
Stat. Ann. § 3701(a)(1)(iii). Aggravated assault is classified
as a felony in the first or second degree, id. § 2702(b), and
clearly involves violence. Therefore, Blair was charged with
and pled guilty to four violent first-degree felony robberies.
In his opening and reply briefs, Blair essentially
conceded that his May 6, 1991, convictions satisfy the
“violent felony” condition of ACCA. (Cf. Appellant’s
Opening Br. at 45 (“The … robberies are not violent felonies
‘committed on occasions different from one another’ but at
most count as one violent felony predicate.”); Appellant’s
Reply Br. at 18 (“For the foregoing reasons and those
articulated in the opening brief, the 1991 robbery convictions
count at most as one violent felony … .”).) But, in a
supplemental brief addressing the Supreme Court’s decision
in Descamps, and again at oral argument, he has insisted that
the robbery convictions are not categorically violent felonies.5
A prior conviction qualifies as a “violent felony” under
ACCA if the conviction is for “any crime punishable by
imprisonment for a term exceeding one year … that”: (i) “has
5
Blair also argues that the residual clause of ACCA,
§ 924(e)(2)(B)(ii), is unconstitutionally vague and that his
sentence should accordingly be reversed. But both the
Supreme Court and our Court have rejected that argument.
See Sykes v. United States, 131 S. Ct. 2267, 2277 (2011)
(upholding residual clause against vagueness challenge);
United States v. Gibbs, 656 F.3d 180, 188-89 (3d Cir. 2011)
(rejecting “fair notice” argument and holding that the residual
clause is not unconstitutionally vague).
8
as an element the use, attempted use, or threatened use of
physical force against the person of another;” or (ii) “is
burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential
risk of physical injury to another… .” 18 U.S.C.
§§ 924(e)(2)(B)(i) & (ii).
In determining whether a defendant’s prior conviction
serves as an ACCA predicate, we begin our analysis with
what is called the “categorical approach,” first adopted in
Taylor v. United States, 495 U.S. 575 (1990), under which a
sentencing court compares “the elements of the statute
forming the basis of the defendant’s conviction with the
elements of the ‘generic’ crime – i.e., the offense as
commonly understood.” Descamps, 133 S. Ct. at 2281; see
also James v. United States, 550 U.S. 192, 202 (2007) (“[W]e
consider whether the elements of the offense are of the type
that would justify its inclusion within the residual provision
[of ACCA], without inquiring into the specific conduct of this
particular offender.”). When the statute’s elements are “the
same as, or narrower than” the generic offense, the prior
conviction qualifies as an ACCA predicate. Descamps, 133
S. Ct. at 2281. But if a statute “comprises multiple,
alternative versions of the crime[,]” id. at 2284, then a court
may apply the “modified categorical approach” to determine
which alternative – one that meets the generic offense
definition or one that does not – formed the basis for the
conviction. Id. at 2281. A statute that includes alternative
elements is said to be “divisible,” id. at 2283, while one that
does not is “indivisible.” Id. at 2281.
The modified categorical approach allows the
sentencing court to “consult a limited class of documents,
9
such as indictments and jury instructions,” to determine
which alternative in a divisible statute was the basis for a
conviction, and to compare that conviction to the generic
offense under ACCA. Id.; see Taylor, 495 U.S. at 602.
Under the modified categorical approach, a court is therefore
permitted to “go beyond the mere fact of conviction[,]”
Taylor, 495 U.S. at 602, to determine the elements of the
crime of conviction. Id.; Shepard v. United States, 544 U.S.
13, 20-21 (2005) (holding that, to interpret a conviction
pursuant to a plea agreement, a sentencing court may look to
the agreement and plea colloquy in applying the modified
categorical approach). The decision in Descamps makes it
clear that if the relevant statute is indivisible (that is, it does
not have alternative elements), and if it is overbroad (that is, it
criminalizes a broader range of conduct than the generic
offense), then the sentencing court cannot apply the modified
categorical approach.6 133 S. Ct. at 2281.
In Descamps, the Supreme Court rejected the Ninth
Circuit’s application of the modified categorical approach to a
California burglary statute. That statute provides that a
“person who enters” property “with intent to commit grand or
petit larceny or any felony is guilty of burglary.” Cal. Penal
Code § 459 (quoted in Descamps, 133 S. Ct. at 2282).
Significantly, it “does not require the entry to have been
unlawful in the way most burglary laws do.” Descamps, 133
S. Ct. at 2282. So, for example, a shoplifter who walks into a
6
In this context, the term “overbroad” has nothing to
do with the constitutional concept of “overbreadth.” Rather,
it is the term the Supreme Court used to describe the scope of
a criminal statute in comparison to the generic version of an
offense.
10
store like any other business invitee comes within the
statutory definition of burglary. Id. “In sweeping so widely,
the state law goes beyond the normal, ‘generic’ definition of
burglary[,]” id., and is therefore overbroad. The statute is
also indivisible, because it does not provide any alternative
definitions of burglary. Nevertheless, the Ninth Circuit,
relying on its own precedent, see United States v. Aguila-
Montes de Oca, 655 F.3d 915, 940 (9th Cir. 2011) (en banc)
(per curiam) (where a statute is “categorically broader than
the generic offense,” the sentencing court may look at certain
documents), had ruled that it could apply the modified
categorical approach. It looked at the plea colloquy and
decided that the plea “rested on facts that satisfy the elements
of generic burglary.” Descamps, 133 S. Ct. at 2282-83
(quoting United States v. Descamps, 466 F. App’x 563, 565
(9th Cir. 2012)). The Supreme Court reversed and clarified
that “sentencing courts may not apply the modified
categorical approach when the crime of which the defendant
was convicted has a single, indivisible set of elements.” Id. at
2282. The Court stated that the purpose of the modified
categorical approach is “to identify, from among several
alternatives, the crime of conviction so that the court can
compare it to the generic offense.” Id. at 2285. If a statute is
indivisible, it presents no alternatives and the inquiry ends.
There is simply no reason to turn to the modified categorical
approach. Id
Blair tries to make of Descamps something it is not.
He notes that, although the Pennsylvania robbery statute as a
whole is divisible, some of its subsections can be viewed as
indivisible and overbroad. He then argues that, because the
charging documents and plea agreement in his case do not say
which subsection of the robbery statute he was convicted
11
under in 1991, a sentencing court could properly apply the
modified categorical approach only to determine which
statutory subsection criminalized the least culpable behavior
of which he could have been convicted. (Appellant’s
Supplemental Br. at 4 (quoting United States v. Tucker, 703
F.3d 205, 214 (3d Cir. 2012)).) Since the “least culpable”
subsection is § 3701(a)(1)(iii), which is overbroad and
indivisible, he says the court could go no further. Thus, he
says, it was error under Descamps for the District Court to
use the modified categorical approach and review the
charging documents to determine that the elements of his
conviction satisfy ACCA.
Given the clearly laid out alternative elements of the
Pennsylvania robbery statute, it is obviously divisible and,
therefore, a sentencing court can properly look to the kinds of
documents listed by the Supreme Court in Taylor and
Shepard to determine which subsection was the basis of
Blair’s prior convictions. Blair acknowledges as much.
(Appellant’s Supplemental Br. at 3 (citing to the
Commonwealth’s charging documents and Blair’s guilty
pleas).) He could not do otherwise, as logic dictates that a
court endeavoring to conclude which subsection he pled
guilty to violating would have to look “to the terms of the
charging document, the terms of a plea agreement or
transcript of colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the defendant,
or to some comparable judicial record of this information.” 7
7
As we discuss more fully herein, because “prior
convictions that increase the statutory maximum for an
offense are not elements of the offense,” they “may be
determined by the District Court by a preponderance of the
12
Shepard, 544 U.S. at 26. Each of the charging documents for
the 1991 convictions indicates that Blair pled guilty to first-
degree robbery.
Blair believes a new analysis begins at that point.
Because the first-degree felony portion of Pennsylvania’s
divisible robbery statute is itself divisible into subsections (i),
(ii), and (iii), he says that a sentencing court must “apply the
modified categorical approach in order to determine the least
culpable conduct sufficient for a conviction.” (Appellant’s
Supplemental Br. at 4 (quoting Tucker, 703 F.3d at 214).)
True enough, that further analytical step is necessary when
documents a sentencing court has already reviewed do not
definitively point out which of the statutory subsections was
violated. Here they do not, and Blair thinks that that makes
the documents irrelevant. He contends that the sentencing
court may use the first-degree indication in the guilty plea
only to get as far as identifying the three first-degree robbery
subsections, and then it must choose the least culpable one
with no more reference to the charging documents or guilty
pleas. Because the least culpable subsection is subsection
(iii), which criminalizes robbery wherein the perpetrator
“commits or threatens immediately to commit any felony of
the first or second degree,” 18 Pa. Cons. Stat. Ann.
§ 3701(a)(1)(iii), and because some felonies of the first and
second degree involve no violence, Blair believes he is home
free. He is mistaken.
evidence.” United States v. Coleman, 451 F.3d 154, 159 (3d
Cir. 2006) (citing Almendarez-Torres v. United States, 523
U.S. 224, 243 (1998)).
13
There is no precedent for the argument that a
sentencing court, having launched on the modified categorical
approach, should stop when it gets to a statutory subsection
and determine again whether to proceed with that approach
and whether it can consider documents it has already
reviewed. The problem is a practical one. Even if it is true
that subsection (iii) of § 3701(a)(1) is indivisible and
categorically overbroad, as Blair says is the case, the
documents that the District Court had reviewed as part of the
modified categorical analysis plainly state that the felonies
associated with his 1991 robbery convictions were
“aggravated assault.” (App. at 137, 154, 171, 192.) The
search for the applicable subsection in the relevant statute
does not send the sentencing judge into a state of amnesia.
To shift the metaphor, the blinders are already off, and there
is no requirement to pretend otherwise.
Though Blair wishes it were otherwise, Descamps did
not upend the Supreme Court’s ACCA jurisprudence. It is a
straightforward clarification of the uses to which the
categorical approach and modified categorical approach can
be put in determining whether a prior conviction qualifies as a
“violent felony” under ACCA. See Descamps, 133 S. Ct. at
2287. Despite Blair’s arguments, Descamps does not demand
a recursive process wherein a district court that has already
pursued the modified categorical approach in addressing a
divisible statute is required to ignore the charging documents
and guilty pleas it has just reviewed. Again, the several
charging documents associated with the 1991 convictions
expressly state that the “felony committed or threatened” by
Blair in each instance was “aggravated assault.” (App. at
137, 154, 171, 192.) Reading each charging document and
guilty plea as a whole, as the District Court did, it is clear that
14
Blair “pled guilty to [each such] robbery charge on May 6,
1991, as a felony of the first degree, thereby admitting that he
used force causing serious bodily injury or threatened to do so
and/or threatened to commit aggravated assault in the process
of committing the robbery.” (App. at 16-17.) That is the
sensible conclusion of the analysis long permitted by the
modified categorical approach, and Descamps does nothing to
change it.
In sum, Pennsylvania’s robbery statute is divisible and
the District Court correctly looked to the charging documents
to determine that Blair was convicted of a violent felony
under ACCA.
B. “Committed on Occasions Different from One
Another”
Blair next contends that the District Court incorrectly
applied ACCA because there was insufficient proof that the
1991 convictions were for offenses committed on different
occasions, and therefore they at most amount to one predicate
offense. As already noted, ACCA’s mandatory minimum
sentence of 15 years becomes applicable when the defendant
“has three previous convictions … for a violent felony or a
serious drug offense, or both, committed on occasions
different from one another… .” 18 U.S.C. § 924(e)(1)
(emphasis added). Blair argues that, because he did not admit
that the robberies occurred on different occasions when he
pled guilty to the charges, the enhanced sentence was
improper under Supreme Court case law and the Fifth and
Sixth Amendments of the United States Constitution.
15
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Supreme Court held that, under the Due Process Clause of the
Fifth Amendment and the notice and jury trial guarantees of
the Sixth Amendment, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Id. at 490.
Nevertheless, as is evident from the language of that holding,
Apprendi did not change the pre-existing rule from
Almendarez-Torres v. United States, 523 U.S. 224 (1998),
that a judge, rather than a jury, may determine “the fact of a
prior conviction.” Apprendi, 530 U.S. at 490. Recently, in
Alleyne v. United States, the Supreme Court extended
Apprendi and held that any facts that increase a mandatory
minimum sentence must be submitted to a jury and proved
beyond a reasonable doubt. 133 S. Ct. 2151, 2158 (2013)
(overruling Harris v. United States, 536 U.S. 545 (2002),
which held that Apprendi did not apply to facts that increase a
mandatory minimum sentence). But the Court expressly
declined to alter the Almendarez-Torres rule. Id. at 2160 n.1.
It observed that, “[b]ecause the parties do not contest that
decision’s vitality, we do not revisit it for purposes of our
decision today.” Id. Almendarez-Torres therefore remains “a
narrow exception to [Apprendi’s] general rule for the fact of a
prior conviction.” Id.
Blair tries to distance himself from the continuing
control of Almendarez-Torres, but he cannot. Although he
does not contend that Alleyne or Descamps overrules the
Almendarez-Torres exception to Apprendi, he urges an
impermissibly narrow construction of the exception. Blair
asserts that it is possible he may have committed some of his
robberies on the same occasion, “during a single criminal
16
episode or a continuous course of conduct or simultaneously
through accomplices.” (Appellant’s Opening Br. at 51.)
Determining whether his 1991 convictions were the product
of a single event or a series of episodes, he says, could only
have been accomplished by the District Court impermissibly
looking at “non-elemental” facts associated with the
convictions. (Appellant’s Supplemental Br. at 6.) By “non-
elemental,” he means “amplifying but legally extraneous
circumstances[,]” as distinct from elements of the offense, the
elements being the only facts the sentencing court can be sure
were found by a jury. Descamps, 133 S. Ct. at 2288.
Because Descamps condemns any reliance on non-elemental
facts, even in the application of the modified categorical
approach, Blair contends that the District Court erred when it
concluded that the robberies were committed on “occasions
different from one another” and increased his sentence.
(Appellant’s Supplemental Br. at 6-7.)
Blair essentially tries to merge Alleyne’s extension of
Apprendi (covering mandatory minimums) and the holding of
Descamps (limiting the application of the modified
categorical approach) to narrow Almendarez-Torres so that a
court considering an ACCA sentencing enhancement cannot
take note of information pertaining to a prior conviction, such
as the date or location of the crimes charged. He argues that
Descamps and Alleyne “teach that strict adherence to the
categorical approach and a narrow reading of the limited
Almendarez-Torres exception to the rule of Apprendi is
necessary to avoid Sixth Amendment concerns, and thus
support … that the sentencing court erred [in this case].”
(Appellant’s Supplemental Br. at 6-7.) By his lights, the
sentencing court “did what Descamps forbids” and looked at
the non-elemental facts of date, location, and victim to
17
determine that the felonies were committed on different
occasions. (Id. at 8.)
Blair’s arguments fail, however, because Almendarez-
Torres has not been narrowed and remains the law. Alleyne,
133 S. Ct. at 2160 n.1. Descamps and Alleyne do nothing to
restrict the established exception under Almendarez-Torres
that allows judges to consider prior convictions. When the
pertinent documents show, as they do in this case, that the
prior convictions are for separate crimes against separate
victims at separate times, Alleyne does not somehow muddy
the record and convert the separateness issue into a jury
question. Alleyne was written against the backdrop of
Almendarez-Torres and existing ACCA jurisprudence. Had
the Supreme Court meant to say that all details related to prior
convictions are beyond judicial notice, it would have said so
plainly, as that would have been a marked departure from
existing law.
Arguments like Blair’s have been rejected by
numerous courts. See, e.g., United States v. Weeks, 711 F.3d
1255, 1259 (11th Cir. 2013) (“[F]or ACCA purposes, district
courts may determine both the existence of prior convictions
and the factual nature of those convictions, including whether
they were committed on different occasions … .”); United
States v. Elliott, 703 F.3d 378, 382 (7th Cir. 2012) (“[A]
district court [may] make a finding for purposes of the ACCA
as to whether a defendant committed three or more violent
felonies or serious drug offenses on occasions different from
one another.”); United States v. Thomas, 572 F.3d 945, 952
n.4 (D.C. Cir. 2009) (citing cases); United States v. Hendrix,
509 F.3d 362, 376 (7th Cir. 2007) (“[T]he district court’s
determination from the PSR that [the defendant] had three
18
previous convictions to satisfy the Armed Career Criminal
Act is not impermissible factfinding, and [the defendant’s]
sentence does not violate the Sixth Amendment.”); United
States v. Michel, 446 F.3d 1122, 1133 (10th Cir. 2006)
(“[W]hether prior convictions happened on different
occasions from one another is not a fact required to be
determined by a jury but is instead a matter for the sentencing
court.”); United States v. Thompson, 421 F.3d 278, 285 (4th
Cir. 2005) (“The data necessary to determine the
‘separateness’ of the occasions is inherent in the fact of the
prior convictions.”); United States v. Burgin, 388 F.3d 177,
186 (6th Cir. 2004) (“[T]he determinations by a district court
that prior felony convictions exist and were committed on
different occasions, are so intimately related that the
‘different occasions’ requirement of § 924(e) sufficiently
comes within the exception in Apprendi for a prior
conviction. Thus, … this issue need not be pled in an
indictment, submitted to a jury, and proved beyond a
reasonable doubt.”); United States v. Santiago, 268 F.3d 151,
157 (2d Cir. 2001) (“[Section] 924(e)’s ‘different occasions’
requirement falls safely within the range of facts traditionally
found by judges at sentencing and is sufficiently interwoven
with the facts of the prior crimes that Apprendi does not
require different fact-finders and different burdens of proof
for Section 924(e)’s various requirements.”). We agree with
that wide consensus and conclude that neither Descamps nor
Alleyne undermines the District Court’s “fact of a prior
conviction” analysis.
The 1991 convictions cover four robberies committed
in October of 1990. According to the charging documents,
one robbery occurred “on or about” October 20, a second
robbery occurred “on or about” October 22, and two
19
robberies occurred “on or about” October 23. Although the
dates charged were not elements of the offenses, the charging
documents nonetheless contained factual matter that was
sufficient for the District Court to conclude that Blair’s 1991
convictions were for at least three robberies that occurred on
separate occasions.8 Indeed, the date of an offense is integral
to the fact of a prior conviction, and is customarily reflected
in the kinds of documents that courts may, under Shepard and
Taylor, use to determine whether a prior conviction exists.
The offenses at issue here occurred on separate
occasions because “the criminal episodes [were] distinct in
time[,]” United States v. Schoolcraft, 879 F.2d 64, 73 (3d Cir.
1989) (citations omitted)(internal quotation marks omitted),
and targeted “different geographic locations and victims,”
Thompson, 421 F.3d at 285. See also United States v. Pope,
132 F.3d 684, 692 (11th Cir. 1998) (holding that a
defendant’s convictions for burgling two different doctor’s
offices located 200 yards apart constitute two crimes, even
though the two burglaries were separated by only moments);
United States v. Brady, 988 F.2d 664, 668-70 (6th Cir. 1993)
(en banc) (holding that two armed robberies, separated in
time by less than an hour, are two convictions).9
8
There is a good argument to be made that all four of
the 1991 convictions took place on separate occasions,
because even the robberies that occurred on the same day
were committed at locations roughly two miles from each
other, and each involved a separate victim. But we need not
reach that conclusion here, as we may affirm the District
Court based on three prior convictions.
9
For those reasons, Blair’s invocation of United States
v. Fuller, 453 F.3d 274 (5th Cir. 2006), does not help his
20
Accordingly, the District Court’s conclusion that Blair’s 1991
convictions qualify as at least three predicate offenses under
ACCA was correct, as was the imposition of the mandatory
minimum sentence required by ACCA.10
cause. The Fuller court held that multiple burglary
convictions were not necessarily for crimes committed on
separate occasions when the indictment did not indicate
whether the defendant had pled guilty to entering separate
apartment units in the same complex, or simply to standing as
a lookout as his accomplice entered the apartments. Id. at
279-80. The court recognized, however, that the case
“turn[ed] on whether [the burglaries] occurred sequentially,
as the district court held that they did, or simultaneously,”
because “[t]he critical inquiry when deciding whether
separate offenses occurred on ‘occasions different from one
another’ for purposes of the ACCA is whether the offenses
occurred sequentially.” Id. If they were sequential, meaning
that one crime came to an end before the next commenced,
they occurred on separate occasions. Id. Here, the charging
documents clearly indicated that, at least as to the robberies
occurring on different days, each of Blair’s robberies had
been completed before the next commenced. They were
separated in both time and distance and therefore could not be
said to be a continuation of one crime.
10
Because we do not see any ambiguity as to whether
ACCA applies here, we also reject Blair’s argument that the
rule of lenity should apply. “The rule of lenity requires
ambiguous criminal laws to be interpreted in favor of the
defendants subjected to them.” United States v. Santos, 553
U.S. 507, 514 (2008).
21
III. Conclusion
For the foregoing reasons, we will affirm Blair’s
sentence.
22