USCA11 Case: 22-10454 Document: 39-1 Date Filed: 06/26/2023 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-10454 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CORNELIUS MICHAEL TURNER,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:19-cr-00105-BJD-LLL-1 ____________________ USCA11 Case: 22-10454 Document: 39-1 Date Filed: 06/26/2023 Page: 2 of 7
2 Opinion of the Court 22-10454
Before LAGOA, BRASHER, and EDMONDSON, Circuit Judges. PER CURIAM: Cornelius Turner appeals his 180-month concurrent sen- tences, imposed after he pleaded guilty to possessing with intent to distribute fentanyl and to being a felon in possession of a firearm. Turner argues that the district court erred in enhancing his sen- tence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). No reversible error has been shown; we affirm. I. Before sentencing, the probation officer prepared a presen- tence investigation report (“PSI”). In pertinent part, the probation officer determined that Turner qualified as an armed career crimi- nal based on Turner’s three prior Florida drug convictions: two convictions for the sale of cocaine and one conviction for posses- sion with intent to sell cocaine. The PSI noted that Turner’s con- victions stemmed from conduct committed on 20 October 2011, 9 November 2011, and 15 November 2011. Turner objected to the PSI’s determination that he qualified for an ACCA-enhanced sentence. Turner did not dispute that his Florida drug convictions qualified as “serious drug offenses” under the ACCA. Turner argued, instead, that the offense conduct un- derlying his convictions was not committed on three separate oc- casions. USCA11 Case: 22-10454 Document: 39-1 Date Filed: 06/26/2023 Page: 3 of 7
22-10454 Opinion of the Court 3
At the sentencing hearing, Turner presented additional ar- gument challenging his classification as an armed career criminal. Turner acknowledged that the Information filed in his Florida drug case showed the three drug offenses occurred on different dates. Nevertheless, Turner argued that the offenses were part of the same criminal episode because they involved the same undercover officer and the same drug. Turner also asserted that an ACCA- enhanced sentence based upon judge-found facts would violate his Sixth Amendment rights. The district court overruled Turner’s objections to his ACCA classification. The district court then sentenced Turner to the statutory-mandatory-minimum sentence of 180 months’ im- prisonment. II. A. We first address Turner’s contention that the district court erred in relying on the state-court Information as evidence that his three drug offenses were committed on different dates. Because Turner raises this argument for the first time on appeal, we review only for plain error. See United States v. Dudley, 5 F.4th 1249, 1255 (11th Cir. 2021). Turner has shown no error, plain or otherwise. We have concluded that a sentencing court may rely on “non-elemental USCA11 Case: 22-10454 Document: 39-1 Date Filed: 06/26/2023 Page: 4 of 7
4 Opinion of the Court 22-10454
facts” contained in Shepard-approved 1 documents to determine whether a defendant’s prior offenses of conviction were committed on different days. See id. at 1259-60, 1265; United States v. Longoria, 874 F.3d 1278, 1283 (11th Cir. 2017). 2 A charging document -- like the Information involved in this case -- is an approved document under Shepard. See Shepard, 544 U.S. at 26 (explaining that, in as- sessing the nature of an offense for purposes of the ACCA, the dis- trict court is limited to considering “the terms of the charging doc- ument, the terms of a plea agreement or transcript of colloquy be- tween judge and defendant in which the factual basis for the plea was confirmed by the defendant, or [] some comparable judicial record of this information”). Under our binding precedent, the district court was author- ized to rely on the state-court Information in finding that Turner’s drug offenses occurred on three separate and distinct days. Turner has demonstrated no plain error.
B.
1 Shepard v. United States, 544 U.S. 13 (2005). 2 We reject Turner’s assertion that our precedent -- allowing courts to use Shepard-approved documents for purposes of the ACCA’s different-occasions inquiry -- has been abrogated by the Supreme Court’s decision in United States v. Mathis, 579 U.S. 500 (2016). See Dudley, 5 F.4th at 1265 (explaining that Mathis never addressed the ACCA’s different-occasions inquiry and, thus, did not abrogate our prior precedent on that issue). USCA11 Case: 22-10454 Document: 39-1 Date Filed: 06/26/2023 Page: 5 of 7
22-10454 Opinion of the Court 5
Turner next contends that -- even if his three drug offenses were committed on different days 3 -- the offenses were part of the same criminal episode. We review de novo whether a defendant’s “prior offenses meet the ACCA’s different-occasions requirement.” See Longoria, 874 F.3d at 1281. Under the ACCA, a defendant convicted of being a felon in possession of a firearm is subject to a mandatory-minimum sen- tence of 15 years’ imprisonment if the defendant has three prior 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). A defendant’s predicate offenses are considered to have been committed on different occasions under the ACCA if the offenses are “‘temporally distinct’ and arise from ‘separate and distinct criminal episodes.’” See Dudley, 5 F.4th at 1259 (brackets omitted); United States v. Sneed, 600 F.3d 1326, 1329- 30 (11th Cir. 2010) (“Distinctions in time and place are usually suf- ficient to separate criminal episodes from one another even when the gaps are small.”). The record supports the district court’s determination that Turner committed his Florida drug offenses on 20 October, 9 No- vember, and 15 November 2011. These offenses -- separated by twenty and six days -- were sufficiently temporally distinct to con- stitute separate occurrences under the ACCA. See Longoria, 874
3 We note that Turner has never disputed that his three Florida drug convic- tions arose out of conduct that, in fact, occurred on three different days. USCA11 Case: 22-10454 Document: 39-1 Date Filed: 06/26/2023 Page: 6 of 7
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F.3d at 1282 (concluding that drug offenses committed nine and seven days apart constituted “separate criminal episodes” for pur- poses of the ACCA). Contrary to Turner’s assertion, our conclusion is consistent with the Supreme Court’s recent decision in Wooden v. United States, 142 S. Ct. 1063 (2022). In Wooden, the Supreme Court noted that - - unlike “offenses separated by substantial gaps in time or signifi- cant intervening events” -- “[o]ffenses committed close in time, in an uninterrupted course of conduct, will often count as part of one occasion.” See Wooden, 142 S. Ct. at 1071 (concluding that a series of ten burglaries committed on a single night, in an uninterrupted course of conduct, and at one location constituted a single criminal episode).
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USCA11 Case: 22-10454 Document: 39-1 Date Filed: 06/26/2023 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-10454 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CORNELIUS MICHAEL TURNER,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:19-cr-00105-BJD-LLL-1 ____________________ USCA11 Case: 22-10454 Document: 39-1 Date Filed: 06/26/2023 Page: 2 of 7
2 Opinion of the Court 22-10454
Before LAGOA, BRASHER, and EDMONDSON, Circuit Judges. PER CURIAM: Cornelius Turner appeals his 180-month concurrent sen- tences, imposed after he pleaded guilty to possessing with intent to distribute fentanyl and to being a felon in possession of a firearm. Turner argues that the district court erred in enhancing his sen- tence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). No reversible error has been shown; we affirm. I. Before sentencing, the probation officer prepared a presen- tence investigation report (“PSI”). In pertinent part, the probation officer determined that Turner qualified as an armed career crimi- nal based on Turner’s three prior Florida drug convictions: two convictions for the sale of cocaine and one conviction for posses- sion with intent to sell cocaine. The PSI noted that Turner’s con- victions stemmed from conduct committed on 20 October 2011, 9 November 2011, and 15 November 2011. Turner objected to the PSI’s determination that he qualified for an ACCA-enhanced sentence. Turner did not dispute that his Florida drug convictions qualified as “serious drug offenses” under the ACCA. Turner argued, instead, that the offense conduct un- derlying his convictions was not committed on three separate oc- casions. USCA11 Case: 22-10454 Document: 39-1 Date Filed: 06/26/2023 Page: 3 of 7
22-10454 Opinion of the Court 3
At the sentencing hearing, Turner presented additional ar- gument challenging his classification as an armed career criminal. Turner acknowledged that the Information filed in his Florida drug case showed the three drug offenses occurred on different dates. Nevertheless, Turner argued that the offenses were part of the same criminal episode because they involved the same undercover officer and the same drug. Turner also asserted that an ACCA- enhanced sentence based upon judge-found facts would violate his Sixth Amendment rights. The district court overruled Turner’s objections to his ACCA classification. The district court then sentenced Turner to the statutory-mandatory-minimum sentence of 180 months’ im- prisonment. II. A. We first address Turner’s contention that the district court erred in relying on the state-court Information as evidence that his three drug offenses were committed on different dates. Because Turner raises this argument for the first time on appeal, we review only for plain error. See United States v. Dudley, 5 F.4th 1249, 1255 (11th Cir. 2021). Turner has shown no error, plain or otherwise. We have concluded that a sentencing court may rely on “non-elemental USCA11 Case: 22-10454 Document: 39-1 Date Filed: 06/26/2023 Page: 4 of 7
4 Opinion of the Court 22-10454
facts” contained in Shepard-approved 1 documents to determine whether a defendant’s prior offenses of conviction were committed on different days. See id. at 1259-60, 1265; United States v. Longoria, 874 F.3d 1278, 1283 (11th Cir. 2017). 2 A charging document -- like the Information involved in this case -- is an approved document under Shepard. See Shepard, 544 U.S. at 26 (explaining that, in as- sessing the nature of an offense for purposes of the ACCA, the dis- trict court is limited to considering “the terms of the charging doc- ument, the terms of a plea agreement or transcript of colloquy be- tween judge and defendant in which the factual basis for the plea was confirmed by the defendant, or [] some comparable judicial record of this information”). Under our binding precedent, the district court was author- ized to rely on the state-court Information in finding that Turner’s drug offenses occurred on three separate and distinct days. Turner has demonstrated no plain error.
B.
1 Shepard v. United States, 544 U.S. 13 (2005). 2 We reject Turner’s assertion that our precedent -- allowing courts to use Shepard-approved documents for purposes of the ACCA’s different-occasions inquiry -- has been abrogated by the Supreme Court’s decision in United States v. Mathis, 579 U.S. 500 (2016). See Dudley, 5 F.4th at 1265 (explaining that Mathis never addressed the ACCA’s different-occasions inquiry and, thus, did not abrogate our prior precedent on that issue). USCA11 Case: 22-10454 Document: 39-1 Date Filed: 06/26/2023 Page: 5 of 7
22-10454 Opinion of the Court 5
Turner next contends that -- even if his three drug offenses were committed on different days 3 -- the offenses were part of the same criminal episode. We review de novo whether a defendant’s “prior offenses meet the ACCA’s different-occasions requirement.” See Longoria, 874 F.3d at 1281. Under the ACCA, a defendant convicted of being a felon in possession of a firearm is subject to a mandatory-minimum sen- tence of 15 years’ imprisonment if the defendant has three prior 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). A defendant’s predicate offenses are considered to have been committed on different occasions under the ACCA if the offenses are “‘temporally distinct’ and arise from ‘separate and distinct criminal episodes.’” See Dudley, 5 F.4th at 1259 (brackets omitted); United States v. Sneed, 600 F.3d 1326, 1329- 30 (11th Cir. 2010) (“Distinctions in time and place are usually suf- ficient to separate criminal episodes from one another even when the gaps are small.”). The record supports the district court’s determination that Turner committed his Florida drug offenses on 20 October, 9 No- vember, and 15 November 2011. These offenses -- separated by twenty and six days -- were sufficiently temporally distinct to con- stitute separate occurrences under the ACCA. See Longoria, 874
3 We note that Turner has never disputed that his three Florida drug convic- tions arose out of conduct that, in fact, occurred on three different days. USCA11 Case: 22-10454 Document: 39-1 Date Filed: 06/26/2023 Page: 6 of 7
6 Opinion of the Court 22-10454
F.3d at 1282 (concluding that drug offenses committed nine and seven days apart constituted “separate criminal episodes” for pur- poses of the ACCA). Contrary to Turner’s assertion, our conclusion is consistent with the Supreme Court’s recent decision in Wooden v. United States, 142 S. Ct. 1063 (2022). In Wooden, the Supreme Court noted that - - unlike “offenses separated by substantial gaps in time or signifi- cant intervening events” -- “[o]ffenses committed close in time, in an uninterrupted course of conduct, will often count as part of one occasion.” See Wooden, 142 S. Ct. at 1071 (concluding that a series of ten burglaries committed on a single night, in an uninterrupted course of conduct, and at one location constituted a single criminal episode). The Supreme Court also recognized that courts “have nearly always treated offenses as occurring on separate occasions if a person committed them a day or more apart, or at a ‘significant distance.’” Id. Turner argues chiefly that his offenses should be treated as part of the same criminal episode because they were part of an on- going criminal investigation and involved the same undercover of- ficer, the same drugs, and a limited geographical area. We disagree. These similarities -- when viewed against the days-long amount of time that elapsed between Turner’s drug offenses -- are insufficient to establish that the three offenses were part of a single criminal episode. See id. (“In many cases, a single factor -- especially of time or place -- can decisively differentiate occasions.”). USCA11 Case: 22-10454 Document: 39-1 Date Filed: 06/26/2023 Page: 7 of 7
22-10454 Opinion of the Court 7
The district court committed no error in determining that the offenses underlying Turner’s three drug convictions occurred on different occasions within the meaning of the ACCA. C. Turner’s argument challenging his ACCA-enhanced sen- tence under the Sixth Amendment is foreclosed by our binding precedent. “[W]e have repeatedly rejected the argument that judi- cially determining whether prior convictions were committed on different occasions from one another for purposes of the ACCA violates a defendant’s Fifth and Sixth Amendment rights.” See Dud- ley, 5 F.4th at 1260, 1260 n.10. AFFIRMED.