United States v. Corey Antwan Ammons

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 9, 2018
• Docket: 16-17403
• Status: Unpublished

Opinion

Case: 16-17403 Date Filed: 03/09/2018 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-17403 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cr-20403-WJZ-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

COREY ANTWAN AMMONS,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(March 9, 2018)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 16-17403 Date Filed: 03/09/2018 Page: 2 of 9

Defendant Corey Ammons appeals his 180-month sentence, imposed after

he pled guilty to being a felon in possession of a firearm and ammunition. On

appeal, he argues that the district court erred by enhancing his sentence under the

Armed Career Criminal Act (“ACCA”) because his four prior convictions for

Florida armed robbery did not occur on separate occasions from one another. He

also challenges the procedural and substantive reasonableness of his sentence.

After careful review, we affirm.

I. BACKGROUND

In 2016, Defendant pled guilty pursuant to a written plea agreement to being

a felon in possession of a firearm and ammunition, in violation 18 U.S.C.

§§ 922(g) and 924(e).

In preparation for sentencing, the probation officer prepared the Presentence

Investigation Report (“PSR”). The PSR assigned Defendant a base offense level of

20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A). The PSR determined that Defendant

was an armed career criminal under U.S.S.G. § 4B1.4 based on his 2010

convictions in Florida for four counts of armed robbery and four counts of

conspiracy to commit armed robbery, resulting in an enhanced offense level of 33.

With a three-level reduction for acceptance of responsibility, Defendant’s total

offense level was 30. Based on a total offense level of 30 and a criminal history

category of IV, Defendant’s guideline range was 135 to 168 months’

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imprisonment. However, his guideline range became 180 months’ imprisonment

based on his armed-career-criminal designation. Defendant objected to the

application of the ACCA enhancement, arguing that the armed robbery convictions

should be counted as one offense because they were related and there were no

intervening arrests. He also requested a downward variance.

At sentencing, Defendant reiterated that the ACCA should not apply because

his armed robbery convictions were part of a conspiracy and should therefore be

counted as one offense. The district court overruled the objection, concluding that

the four armed robberies occurred on separate occasions because they occurred at

separate times, in different locations, and had different victims. The district court

noted that it had no discretion to grant Defendant’s motion for a downward

variance given the statutory minimum sentence. Accordingly, the district court

sentenced Defendant to 180 months’ imprisonment. This appeal followed.

II. DISCUSSION

A. ACCA Enhancement

Defendant argues that his sentence was improperly enhanced under the

ACCA. To be clear, he does not argue that a conviction for Florida armed robbery

does not qualify as a violent felony. Instead, he argues that he does not qualify for

the ACCA enhancement because his Florida armed robbery convictions were

related and thus did not occur on separate occasions from one another.

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We review de novo whether prior convictions occurred on separate

occasions for purposes of the ACCA. See United States v. Proch, 637 F.3d 1262,

1265 (11th Cir. 2011). Under the ACCA, a defendant who violates § 922(g) is

subject to a 15-year mandatory minimum sentence if he has three prior convictions

for either a violent felony or a serious drug offense that were committed on

different occasions from one another. 18 U.S.C. § 924(e). The Government bears

the burden of proving by a preponderance of the evidence that the prior convictions

“arose out of a separate and distinct criminal episode.” United States v. Sneed, 600

F.3d 1326, 1329 (11th Cir. 2010) (quotations omitted).

Important to the separate-occasions inquiry is whether “the perpetrator had a

meaningful opportunity to desist his activity before committing the second

offense.” United States v. Pope, 132 F.3d 684, 690, 692 (11th Cir. 1998). We

consider offenses separate “[i]f some temporal break happens between two

offenses.” Proch, 637 F.3d at 1265. “Distinctions in time and place are usually

sufficient to separate criminal episodes from one another even when the gaps are

small.” Sneed, 600 F.3d at 1330 (quotation omitted). To prove that the offenses

occurred on separate occasions, the Government must use Shepard1-approved

documents, such as the charging documents, the plea agreement, the plea colloquy,

or jury instructions. Id. at 1332–33.

1 Shepard v. United States, 544 U.S. 13 (2005). 4 Case: 16-17403 Date Filed: 03/09/2018 Page: 5 of 9

Here, the district court properly concluded that Defendant’s four convictions

for armed robbery were separate offenses under the ACCA. In his plea colloquy

before the Florida trial court in 2010, Defendant admitted that he participated in

the armed robbery of a victim named F.T. on February 3, 2010, at 4:10 AM on

13th Street and Drexel Court in Miami Beach. Twenty minutes later, Defendant

then participated in a second robbery against victims named J.D. and D.S. on 820

Euclid Avenue. Defendant admitted that the third armed robbery occurred the

following day, on February 4, 2010, at 2:00 AM against another victim, C.G., at

41st Street and the Boardwalk in Miami Beach. Finally, Defendant admitted that

approximately one-half hour after that robbery, he participated in another armed

robbery against J.W., M.S., P.C., and V.F. on 20th Street in Miami Beach.

The plea colloquy establishes that Defendant committed four separate and

distinct armed robberies against several different victims. Given the different

locations and the gaps in time between the armed robberies—including the 20-

minute period between the first and second armed robberies and the nearly 24-hour

period between the second and third armed robberies—Defendant had “a

meaningful opportunity to desist his activity” before participating in each

subsequent offense. See Pope, 132 F.3d at 690, 692 (“[T]he ‘successful’

completion of one crime plus a subsequent conscious decision to commit another

crime makes that second crime distinct from the first for purposes of the ACCA.”).

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Defendant’s argument that his armed-robbery convictions did not occur on

different occasions because they were part of a common scheme is not persuasive.

To support his argument, Defendant relies on commentary to a prior version of the

Guidelines, which provided that offenses were related, and thus not counted

separately for purposes of calculating criminal history, if they were part of a

common scheme or plan. See U.S.S.G. § 4A1.2, comment. (n.3) (2003) (“[P]rior

sentences are considered related if they resulted from offenses that (A) occurred on

the same occasion, (B) were part of a single common scheme or plan, or (C) were

consolidated for trial or sentencing.”); see also United States v. Hernandez-

Martinez, 382 F.3d 1304, 1306 (11th Cir. 2004) (analyzing whether a defendant’s

convictions were part of a common scheme for purposes of determining his

criminal history score under U.S.S.G. § 4A1.2). This specific Guidelines’

commentary, however, is no longer in effect. Compare U.S.S.G. § 4A1.2,

comment. (n.3) (2003) with U.S.S.G. § 4A1.2(a)(2) (2016); see also U.S.S.G.,

Supplement to Appendix C, Amendment 709 (effective Nov. 1, 2007). But

regardless, this commentary related to whether an offense was counted separately

for purposes of calculating criminal history under the Guidelines and is irrelevant

to our present inquiry: whether two offenses occurred on separate occasions for

purposes of the ACCA.

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In short, Defendant’s four armed robbery convictions are separate and

distinct offenses because he completed each individual armed robbery before

traveling to a new location and deciding to participate in another armed robbery.

After successfully completing each armed robbery, Defendant made a conscious

decision to participate in the next armed robbery. See Pope, 132 F.3d at 690, 692.

Because Defendant’s four prior convictions for armed robbery occurred on

different occasions, the district court did not err by applying the ACCA

enhancement.

B. Reasonableness of Sentence

Using a two-step process, we review the reasonableness of a sentence for

abuse of discretion. United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014).

We first look to whether the district court committed any significant procedural

error, such as miscalculating the advisory guideline range, treating the Sentencing

Guidelines as mandatory, failing to consider the § 3553(a) factors,2 selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence. Id. Once we have determined that the sentence is procedurally

2 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed education or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

7 Case: 16-17403 Date Filed: 03/09/2018 Page: 8 of 9

reasonable, then we examine whether the sentence is substantively reasonable in

light of the totality of the circumstances and the § 3553(a) factors. Id. The party

challenging the sentence bears the burden of showing that it is unreasonable.

United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008).

Defendant first argues that the district court committed procedural error by

failing to consider the § 3553(a) factors. Because Defendant failed to raise this

argument before the district court, our review is for plain error.3 United States v.

Parks, 823 F.3d 990, 996 (11th Cir. 2016) (explaining that plain-error review

applies where a defendant raises an argument for the first time on appeal that the

district court did not consider the § 3553(a) factors); United States v. Vandergrift,

754 F.3d 1303, 1307 (11th Cir. 2014) (reviewing for plain error a procedural-

reasonableness argument raised for the first time on appeal). Defendant, however,

cannot show that the district court committed error, let alone plain error, because

the record refutes his argument.

Prior to imposing sentence, the district court listened to the parties’

arguments and expressly stated that it had considered the PSR and the § 3553(a)

factors. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (“In

consideration of the § 3553(a) factors, the district court does not need to discuss or

3 To establish plain error, “there must be (1) an error (2) that is plain and (3) that has affected the defendant’s substantial rights; and . . . (4) the error ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’” United States v. Madden, 733 F.3d 1314, 1320 (11th Cir. 2013) (alteration accepted). 8 Case: 16-17403 Date Filed: 03/09/2018 Page: 9 of 9

state each factor explicitly. An acknowledgement the district court has considered

the defendant’s arguments and the § 3553(a) factors will suffice.” (citation

omitted)). Because this was sufficient under our precedent, Defendant cannot

show that the district court committed procedural error.

Defendant’s 15-year sentence is also not substantively unreasonable. In

sentencing Defendant, the district court weighed the § 3553(a) factors, considering

that it did not have discretion to impose a sentence below the statutory minimum

and that Defendant had a bright future before he started committing crimes. In

fact, the court noted that Defendant “should not be standing here in this courtroom,

not after all the opportunities, the incredible opportunities that ha[d] been made

available to [him].” We cannot say that the district court “committed a clear error

of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” United

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010). Moreover, the fact that the

15-year sentence was significantly below the statutory maximum of life

imprisonment suggests that it was reasonable. Gonzalez, 550 F.3d at 1324 (stating

that a sentence well below the statutory maximum is an indicator of

reasonableness).

III. CONCLUSION

For the above reasons, Defendant’s sentence is AFFIRMED.