United States v. Jenord Brown

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 3, 2010
• Docket: 09-14868
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 09-14868 DEC 03, 2010 Non-Argument Calendar JOHN LEY ________________________ CLERK

D. C. Docket No. 08-20756-CR-MGC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JENORD BROWN,

Defendant-Appellant.

________________________

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

(December 3, 2010)

Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.

PER CURIAM:

Defendant-Appellant Jenord Brown appeals his 180-month concurrent

sentences after he pleaded guilty to 1) two counts of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. sections 922(g)(1) and

924(e)(1) (“Group 1”) and 2) two counts of possession of a controlled substance, in

violation of 21 U.S.C. section 844(a) (“Group 2”).1 No reversible error has been

shown; we affirm.

I. Background

Brown argued before the district court -- and argues again on appeal -- that it

was error to enhance his sentence under 18 U.S.C. section 924(e)(1) because he did

not have the requisite number of prior convictions for the ACCA to apply. First,

he argues that three of his prior convictions (which he concedes constituted violent

felonies under the ACCA) should have been considered as only one offense: they

took place within a nine-day span, were consolidated for sentencing, and were part

of a common scheme or plan. Second, Brown contends that, under the ACCA, one

of his prior convictions should not have counted as a predicate conviction where

adjudication of guilt had been withheld.

II. Standard of Review

1 Brown does not appeal his sentence for the Group 2 counts.

2 We review questions of statutory interpretation de novo, including whether

offenses are “committed on occasions different from one another” for purposes of

the ACCA. United States v. Lee, 208 F.3d 1306, 1307 (11th Cir. 2000).

III. Discussion

The district court’s sentence is without error. The district court was correct

to conclude that Brown possessed the necessary three previous convictions for a

violent felony. The ACCA provides for a fifteen-year mandatory minimum

sentence where a person violates 18 U.S.C. § 922(g) and has three previous

convictions for a violent felony or a serious drug offense, or both, committed on

different occasions. See 18 U.S.C. § 924(e). We said in Pope that where

“predicate crimes are successive rather than simultaneous, they constitute separate

criminal episodes for purposes of the ACCA.” United States v. Pope, 132 F.3d

684, 692 (11th Cir. 1998) (concluding that consecutively burglarizing buildings

200 yards apart constituted separate crimes for ACCA purposes); see also United

States v. Lee, 208 F.3d 1306, 1307 (11th Cir. 2000) (looking to whether the

defendant possessed a meaningful opportunity to desist activity before committing

a later offense).

3 Here, the three predicate crimes relied on by the district court for triggering

the ACCA mandatory-minimum sentence were committed successively and, with

regard to time, were distinct.2 Committing the crimes over a nine-day span, Brown

possessed sufficient opportunity to desist but declined to do so. Brown’s

arguments about the crimes constituting a common scheme and about the offenses’

consolidation for sentencing do not alter ACCA’s clear statutory requirement. See

18 U.S.C. § 924(e)(1) (requiring prior convictions arising from offenses

“committed on occasions different from one another”).

We reject Brown’s argument that the conviction for which he never received

a guilty adjudication should not count. See United States v. Santiago, 601 F.3d

1241, 1242 (11th Cir. 2010) (concluding that “a guilty plea followed by a sentence

of probation and a withholding of adjudication qualifies under Florida law as a

predicate conviction for the purpose of enhancing a defendant’s sentence under the

ACCA”).

AFFIRMED.

2 Defendant does not contest that the three crimes qualified as “violent felon[ies]” under section 924(e)(1).