United States v. Ronnie Lovell

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 10, 2023
• Docket: 20-6287
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0083n.06

Case No. 20-6287

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED ) Feb 10, 2023 UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF RONNIE R. LOVELL, ) TENNESSEE Defendant-Appellant. ) ) OPINION

Before: CLAY, WHITE, and THAPAR, Circuit Judges.

THAPAR, Circuit Judge. Ronnie Lovell burglarized six different residences on six

different days over the course of more than a month. He now claims the district court plainly erred

in concluding these robberies occurred on different “occasions.” We affirm.

I.

Lovell pled guilty to being a felon in possession of ammunition in violation of 18 U.S.C.

§ 922(g)(1). At the time of his sentencing, that offense typically carried a maximum penalty of

ten years’ imprisonment. See 18 U.S.C. § 924(a)(2) (2020) (amended 2022). But because Lovell

had previously pled guilty to six aggravated burglaries under Tennessee law, the district court

determined that the Armed Career Criminal Act’s (“ACCA”) fifteen-year mandatory minimum

applied. See 18 U.S.C. § 924(e)(1). So the district court sentenced Lovell to fifteen years’

imprisonment. Case No. 20-6287, United States v. Lovell

Lovell appealed, and while his appeal was pending, our circuit decided United States v.

Stitt, 860 F.3d 854, 856 & 862 (6th Cir. 2017) (en banc), which held that Tennessee aggravated

burglary wasn’t a violent felony for ACCA purposes. In light of that case, we vacated Lovell’s

sentence and remanded. But before he was resentenced, the Supreme Court reversed Stitt, holding

that Tennessee aggravated burglary was an ACCA violent felony. United States v. Stitt, 139 S. Ct.

399, 406–07 (2018). So at Lovell’s resentencing, the district court again determined ACCA

applied and reimposed a fifteen-year sentence. The court overruled Lovell’s objections that

Tennessee aggravated burglary still wasn’t a violent felony and that an earlier version of the

Sentencing Guidelines should be used. Lovell again appealed his sentence.

II.

Lovell now claims for the first time that his burglaries don’t trigger ACCA because they

didn’t occur on different “occasions.” See 18 U.S.C. § 924(e)(1). Alternatively, he argues that the

Constitution bars the district court from finding the facts needed to make this determination. Since

Lovell makes both arguments for the first time on appeal, we review for plain error. United States

v. Southers, 866 F.3d 364, 366 (6th Cir. 2017). To succeed on plain-error review, Lovell has to

prove three things: (1) there was an error (2) that was “clear or obvious” and (3) that affected his

“substantial rights.” Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have

discretion to remedy the error, but only if the error “seriously affects the fairness, integrity or

public reputation of judicial proceedings.” Id. (cleaned up).

A.

ACCA’s mandatory minimum only applies when a defendant committed three or more

violent felonies on “occasions different from one another.” See 18 U.S.C. § 924(e)(1). The

Supreme Court has emphasized that, when deciding whether prior convictions were committed on

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the same “occasion,” we should rely on ordinary meaning and common sense. An occasion is a

single “event, occurrence, happening, or episode.” Wooden v. United States, 142 S. Ct. 1063, 1069

(2022). The inquiry is meant to be “intuitive” rather than hyper-technical. And we consider the

timing, location, character, and relationship of the offenses. Id. at 1071. Timing and location are

particularly important, and a single factor can be dispositive in many cases. Id.

For instance, the Supreme Court in Wooden held that the defendant had committed his

crimes on the same occasion because they all occurred on the same night, in the same building, as

part of the same scheme. Id. Wooden had burglarized ten storage units at the same single-building

facility, one after another, by breaking through the walls between the units. The Court said that

unlike offenses that were committed “a day or more apart” or “at a significant distance,” Wooden’s

offenses occurred on one occasion. Id. (citation omitted).

On the other hand, courts “nearly always treat[] offenses as occurring on separate

occasions” when they’re separated by time or space. Id. Our circuit recently considered such a

case. See United States v. Williams, 39 F.4th 342 (6th Cir. 2022). Williams had committed four

robberies, at either three or four different locations. The first three occurred within a span of two

weeks, and the next a month and a half later. The court concluded that “[g]iven the substantial

gap in time between [the] offenses and some variety in locations, the offenses were committed on

separate occasions.” Id. at 350. Our sister circuits have drawn similar conclusions in similar cases.

See, e.g., United States v. Riddle, 47 F.3d 460, 462 (1st Cir. 1995) (per curiam) (concluding that

five convictions “on four different dates involving five different locations and victims” were

committed on different occasions); see also Wooden, 142 S. Ct. at 1071 (citing Riddle as a typical

case).

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Like Williams, Lovell’s crime spree spanned numerous locations over more than a month.

On June 25, 2010, Lovell burglarized Gavin McGowan’s home. Two weeks later, on July 7, he

hit Robert Travis’s home. Two weeks after that, on July 21, he burglarized Richard Beckley’s

home. On July 24, it was John Moore’s home. Three days after that, on July 27, Lovell burglarized

Julia Whipple’s home. And on July 30, he recruited two others to come with him to Martin

French’s home, where he used a pry bar on two of the windows to break in to steal a TV. Most of

these facts came from the informations that Lovell pled to. Five of the six informations were based

on Lovell’s own confessions. And Lovell presented no facts indicating either that these dates and

locations were wrong or that the offenses should for some other reason be considered part of only

one or two occasions.

To succeed on plain-error review, Lovell would have to show that in the face of the

uncontested facts, the district court should have sua sponte concluded that his laundry list of

offenses was all really part of only one or two events at only one or two locations and on only one

or two dates. But Lovell has not shown, for instance, that Gavin McGowan, Robert Travis, Richard

Beckley, John Moore, Julia Whipple, and Martin French actually all lived at the same address, or

that when the Presentence Report (“PSR”) said June 25, July 7, July 21, July 24, and July 27, it

really meant to say July 30 five times over. Nor, of course, has Lovell shown that these conclusions

were so “clear or obvious” that the district court was unreasonable not to draw them. Puckett, 556

U.S. at 135.

Instead, Lovell claims that two linguistic features of the PSR draw the temporal and spatial

distance between the crimes into question. First, the PSR said that five of the six offenses occurred

“on or about” the listed date. According to Lovell, “on or about June 25” could actually mean “on

July 30,” so the district court had no way of knowing when the offenses actually occurred. For

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that matter, all six could have occurred on the same date. But there are a few problems with this

argument. For one thing, “on or about” isn’t an unusual formulation; the district court would have

had no reason to sua sponte question the accuracy of the dates listed. And for another, the district

court had an independent reason to think the dates listed were the correct ones: the “on or about”

language came directly from the offenses’ informations, and the informations were based on

Lovell’s confessions. So the dates in the PSR presumably came from Lovell’s own account of the

crimes. It would have made little sense for the district court to conclude that the dates weren’t

what the PSR said they were—and it surely didn’t err by failing to do so absent an objection from

Lovell.

Lovell’s second argument fares no better. Setting his sights on the location factor of the

Wooden test, he claims that it wasn’t clear enough for the PSR to list the various victims’

“habitations” as the locations of five of the offenses. “Habitation” can sometimes mean

“apartment” or “hotel room,” so it’s conceivable, Lovell says, that the crimes occurred at only one

or two buildings. But this line of reasoning fails for the same reasons his dates argument did.

There was no reason for the district court to think that five different “habitations” were really only

in one or two buildings, given the information in the record. And when he confessed to the crimes,

Lovell took police officers to the various “locations” where they occurred, so they at least didn’t

all occur at only one location. R. 24-1, Pg. ID 188. Again, Lovell can’t show that the district court

erred, and he certainly didn’t show that it did so “clear[ly] or obvious[ly].” Puckett, 556 U.S. at

135.

Resisting this conclusion, Lovell looks to legislative history to claim that ACCA’s

enhancement was only meant to apply to “recidivists.” In other words, he claims “occasions

different from one another” really means occasions separated by arrests, prosecutions, and maybe

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jail time. But the occasions-different clause doesn’t say anything about either recidivism or

criminal-justice-system intervention. See 18 U.S.C. § 924(e)(1). And Wooden’s “multi-factor”

test doesn’t include intervening arrests. It asks courts only to determine whether the convictions

satisfy the ordinary meaning of a single “occasion” by looking to facts underlying the convictions

like location, timing, and whether the offenses were intertwined.1 Wooden, 142 S. Ct. at 1070–71;

see also id. at 1078–79 (Barrett, J., concurring) (warning courts not to read “buzzwords” like

“recidivi[sm]” into ACCA based on legislative history (citation omitted)). Indeed, our own circuit

in applying Wooden hasn’t mentioned recidivism either. See Williams, 39 F.4th at 350–51. We

can’t add a requirement to the statute based on legislative history.

What’s more, even if Lovell could show that the district court committed an error that was

sufficiently clear or obvious, he hasn’t satisfied the third prong of plain-error review, the

substantial-rights prong. To do so, he would need to make a “showing on appeal that he would

have presented evidence in the district court” that the burglaries actually occurred on only one or

two occasions. Greer v. United States, 141 S. Ct. 2090, 2097 (2021). True, Lovell has said that

on remand, he would “argue that his burglaries occurred close in time and place” and “put in[to]

evidence facts indicating that they were intertwined.” Reply Br. at 11. But he has given us no

indication of what those arguments or that evidence would be. And merely rehearsing what he

would have to show to reach a different result does not give rise to a “reasonable probability that

the outcome would have been different” absent any error. Greer, 141 S. Ct. at 2097 (cleaned up).

In sum, Lovell hasn’t shown that it was plain error for the district court to conclude his six

prior burglary convictions occurred on “occasions different from one another.”

1 True, the Wooden Court said that in “hard cases,” courts should “keep[] an eye” on ACCA’s history and purpose in conducting this inquiry. See Wooden, 142 S. Ct. at 1071. But as explained above, this wasn’t a “hard case”—Lovell burglarized six people in six places on six different days over the course of over a month.

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B.

Lovell argues in the alternative that the Constitution bars a sentencing judge from finding

the facts needed to satisfy the occasions-different clause. Under Apprendi v. New Jersey, 530 U.S.

466 (2000), a judge may find the “fact of a prior conviction,” but all other “fact[s] that increase[]

the penalty for a crime beyond the prescribed statutory maximum” must be included in the

indictment and submitted to a jury. Id. at 490. This rule, Lovell contends, applies to the occasions-

different inquiry, so the sentencing court erred by applying the enhancement even though the

underlying facts weren’t included in the indictment or plea. But we’ve previously held that the

facts governing the occasions-different inquiry are included in “the fact of a prior conviction,” so

they fall into the Apprendi exception. United States v. Burgin, 388 F.3d 177, 186 (6th Cir. 2004).

And we’ve since reaffirmed this rule. United States v. Williams, 39 F.4th 342, 351 (6th Cir. 2022);

cf. Wooden, 142 S. Ct. at 1087 n.3 (noting that the Supreme Court hasn’t yet addressed this

question). The district court didn’t err—let alone plainly so—by applying this settled rule.

* * *

We affirm.

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