United States v. Gregory Cook

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 3, 2022
• Docket: 22-5056
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0394n.06

No. 22-5056

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Oct 03, 2022 DEBORAH S. HUNT, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE EASTERN DISTRICT OF ) TENNESSEE GREGORY ALLEN COOK, ) Defendant-Appellant. ) OPINION )

Before: GUY, WHITE, and LARSEN, Circuit Judges.

LARSEN, Circuit Judge. Gregory Cook pleaded guilty to being a felon in possession of

firearms. The district court sentenced him to a fifteen-year sentence after concluding that, for

purposes of the Armed Career Criminal Act (ACCA), his three prior burglary convictions

constituted violent felonies committed on different occasions. Cook challenges his sentence,

claiming that a jury had to determine whether his prior burglary convictions were committed on

different occasions. Binding precedent forecloses Cook’s argument, so we AFFIRM.

I.

Cook pleaded guilty to possessing firearms as a felon after police found four handguns and

numerous ammunition rounds spread throughout Cook’s car and home. Normally, a defendant

would face a maximum penalty of ten years’ imprisonment for that offense. 18 U.S.C. § 924(a)(2).

Cook, however, had six prior Tennessee burglary convictions, each of which qualifies as a violent

felony under the ACCA, see id. § 924(e)(2)(B)(ii); United States v. Ferguson, 868 F.3d 514, 515 No. 22-5056, United States v. Cook

(6th Cir. 2017). So the Presentence Report recommended that the district court sentence Cook to

the fifteen-year minimum sentence required by the ACCA for having three prior convictions for a

violent felony. 18 U.S.C. § 924(e)(1). Over Cook’s objection to the enhancement, the district

court sentenced Cook to the ACCA mandatory minimum. Cook now appeals his ACCA-enhanced

sentence.

II.

The ACCA imposes a mandatory minimum fifteen-year sentence for a person who

“violates section 922(g) of this title and has three previous convictions . . . for a violent felony . . .

committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). “This requires two

separate inquires: (1) whether prior convictions qualify as ACCA-predicates, and (2) whether

such offenses were committed on different occasions.” United States v. Hennessee, 932 F.3d 437,

441 (6th Cir. 2019). Cook challenges only the latter inquiry on appeal. We review de novo the

district court’s conclusion that Cook’s prior convictions occurred on different occasions. United

States v. Southers, 866 F.3d 364, 369 (6th Cir. 2019).

Cook argues that “[t]he district court violated [his] rights under the Fifth and Sixth

Amendments when it found, by a preponderance of evidence and based on information contained

in state court records, that he committed three prior offenses ‘on occasions different from one

another.’” Appellant Br. at 11 (quoting 18 U.S.C. § 924(e)(1)). According to Cook, such facts

“should have been charged in the indictment and found by a jury beyond a reasonable doubt.” Id.

at 12.

Cook acknowledges, however, that circuit precedent forecloses this argument. “[T]his

court has already held that ‘consistent with Apprendi [v. New Jersey, 530 U.S. 466 (2000)], a

sentencing judge may answer the question of whether prior offenses were committed on occasions

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different from one another.’” United States v. Williams, 39 F.4th 342, 351 (6th Cir. 2022)

(alteration in original) (citation omitted) (quoting United States v. King, 853 F.3d 267, 274 (6th

Cir. 2017)); see also Hennessee, 932 F.3d at 444; United States v. Burgin, 388 F.3d 177, 186 (6th

Cir. 2004).

Cook attempts to sidestep this precedent by arguing that those cases either came before or

overlooked two Supreme Court cases that make clear that the different-occasions question is for

the jury: United States v. Hayes, 555 U.S. 415 (2009), and Nijhawan v. Holder, 557 U.S. 29

(2009). See Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686, 720 (6th Cir. 2016) (A panel

may overrule a prior binding precedent if the “precedent overlooked earlier Supreme Court

authority.”). Neither case, however, involved the ACCA or the different-occasions requirement.

They give us no authority to revisit our binding precedent.

The Supreme Court’s recent opinion in Wooden v. United States, 142 S. Ct. 1063 (2022)

doesn’t alter this conclusion. In Wooden, the Supreme Court addressed whether burglarizing ten

adjoining units in a single storage facility by burrowing through the walls constituted ten different

occasions for purposes of the ACCA. Id. at 1067. Based on the facts of the case and the ordinary

meaning of “occasions,” the Court concluded that they didn’t. Id. at 1074. But the defendant in

Wooden raised no constitutional challenge to his sentence. See id. at 1087 n.7 (Gorsuch, J.,

concurring in the judgment). So Wooden didn’t disrupt our prior caselaw.

Cook also suggests that the winds are shifting on this issue, noting that two Justices of the

Supreme Court and several circuit judges have questioned whether allowing a judge to find the

different-occasions requirement by a preponderance might violate a defendant’s Fifth and Sixth

Amendment rights. See id.; see also United States v. Dudley, 5 F.4th 1249, 1273–78 (11th Cir.

2021) (Newsom, J., concurring in part and dissenting in part); United States v. Perry, 908 F.3d

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1126, 1134–36 (8th Cir. 2018) (Stras, J., concurring); United States v. Thompson, 421 F.3d 278,

291–95 (4th Cir. 2005) (Wilkins, C.J., dissenting). And in a post-briefing letter, the government

informed us that it has changed its own thinking on this question; it now believes “that a jury

should find (or a defendant should admit) that [the] ACCA predicates were committed on

occasions different from one another.” App. R. 33. Nonetheless, the government asks us to affirm

Cook’s sentence on the ground that this court’s binding precedent forecloses that argument. The

government is right. The Supreme Court has not answered this question, so we must follow our

precedent. See Salmi v. Sec’y of Health & Hum. Servs., 774 F.2d 685, 689 (6th Cir. 1985). The

district court therefore didn’t err by applying the ACCA enhancement.

***

We AFFIRM.

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