Case: 12-11104 Date Filed: 01/31/2013 Page: 1 of 15
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 12-11104 Non-Argument Calendar ________________________
D.C. Docket No. 3:11-cr-00065-HES-JBT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY ALLEN WEEKS,
Defendant-Appellant. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________ (January 31, 2013)
Before CARNES, HULL, and JORDAN, Circuit Judges.
CARNES, Circuit Judge:
Timothy Weeks appeals his 180-month sentence imposed after pleading
guilty to one count of possession of a firearm and ammunition as a convicted felon,
in violation of 18 U.S.C. § 922(g)(1). Weeks contends that the district court erred Case: 12-11104 Date Filed: 01/31/2013 Page: 2 of 15
in imposing the mandatory minimum sentence under the Armed Career Criminal
Act, 18 U.S.C. § 924(e)(1), based on his prior felony convictions for three burglary
offenses and one count of aggravated battery.
I.
Weeks was indicted by a federal grand jury on one count of possessing a
firearm and ammunition as a convicted felon. The indictment alleged that Weeks
had been convicted of five prior felony offenses in Florida: three for burglary of a
structure, one for possession of burglary tools, and one for aggravated battery with
a deadly weapon. The indictment indicated that two of the burglary convictions
arose from a single criminal case, and that all of the prior convictions, except for
aggravated battery, were entered on April 1, 1999. The indictment did not list the
dates on which any of the underlying offenses occurred.
Weeks pleaded guilty to the charged offense without a written plea
agreement and, at his plea colloquy, admitted only that he had a prior felony
conviction for possession of burglary tools. Weeks’ presentence investigation
report found that he was subject to an enhanced mandatory minimum sentence
under the ACCA because he had four prior convictions for violent felonies that
were “committed on occasions different from one another,” specifically his three
prior convictions for burglary of a structure and his conviction for aggravated
battery with a deadly weapon.
2 Case: 12-11104 Date Filed: 01/31/2013 Page: 3 of 15
Weeks objected to the application of the ACCA on numerous grounds.
First, he maintained that the district court could not impose an enhanced sentence
under the ACCA without violating his Fifth and Sixth Amendment rights because
the government did not allege in the indictment or prove beyond a reasonable
doubt that his prior qualifying convictions were committed on occasions different
from one another, as required by § 924(e). Second, Weeks asserted that two of the
burglary convictions should count as a single qualifying offense because they
occurred on the same day, December 2, 1997, and involved two businesses that
were only 56 feet apart from one another, a distance that could be covered on foot
in approximately 13 seconds. Finally, he objected to the PSI’s factual summaries
of his underlying offenses under Shepard v. United States, 544 U.S. 13, 125 S.Ct.
1254 (2005), because they were based on arrest reports and booking sheets, not the
charging documents, terms of any plea agreements, or comparable judicial records.
Weeks reiterated his arguments at sentencing and moved to withdraw his
guilty plea and to be allowed to submit his status under the ACCA to a jury. The
district court denied the request, concluding that the question of whether his prior
offenses were separate and distinct was a sentencing issue that did not need to be
submitted to a jury. The government then introduced the charging documents and
final judgments for Weeks’ prior burglary convictions, as well as the final
judgment for his conviction for aggravated battery. One information charged
3 Case: 12-11104 Date Filed: 01/31/2013 Page: 4 of 15
Weeks with unlawfully entering a My Pizza restaurant on November 27, 1997,
with the intent to commit theft therein. The corresponding final judgment showed
that Weeks pleaded nolo contendere to burglary of a structure, a third-degree
felony, on April 1, 1999. The second information, which charged Weeks with two
counts of burglary of a structure, alleged that Weeks and two cohorts unlawfully
entered Shirley’s Restaurant on December 2, 1997, with the intent to commit theft
therein, and unlawfully entered the Florida Times Union Building that very day
with the same intent. The final judgment showed that Weeks pleaded nolo
contendere to those charges on April 1, 1999. The final judgment for Weeks’
conviction for aggravated battery with a deadly weapon merely established that he
pleaded guilty to that offense on April 1, 1999.
Weeks again objected to the classification of the two burglaries committed
on December 2, 1997, as separate and distinct offenses, arguing that the spatial and
temporal proximity of Shirley’s Restaurant and the Florida Times Union Building
did not leave him with enough time “to make a new and different intent to enter
into a separate building.” The district court overruled Weeks’ objection, finding
that his prior burglary and aggravated battery offenses were each separate and
distinct. As to the two burglaries committed on December 2, 1997, the district
court noted that the charging documents showed that they involved separate
structures and then explained:
4 Case: 12-11104 Date Filed: 01/31/2013 Page: 5 of 15
There is nothing in the record that shows the distance or the time that one would take to get from one building to the other, but the elements of [a] burglary offense would require an entering. If one enters a structure, they then have to leave the structure before entering a second structure, so as far as the Court is concerned, there is a break between the first burglary of Shirley’s Restaurant and the second of the Times-Union building.
The court then sentenced Weeks to 180 months imprisonment, the mandatory
minimum sentence prescribed by the ACCA.
II.
Weeks first contends that the district court violated his Fifth and Sixth
Amendment rights by judicially determining that his prior convictions were
“committed on occasions different from one another,” as required by the ACCA.
Weeks argues that, in light of the Supreme Court’s decision in Nijhawan v. Holder,
557 U.S. 29, 129 S.Ct. 2294 (2009), circumstance-specific facts, like those
required under the ACCA’s different-occasions inquiry, may not serve as a basis
for sentencing enhancements unless they are alleged in an indictment and proven
to a jury beyond a reasonable doubt. 1
We review de novo properly preserved constitutional challenges to a
sentence. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). Under the
1 Weeks also maintains, for purposes of preservation only, that the district court lacked the authority to impose an enhanced sentence under the ACCA because he did not admit to the existence of his predicate offenses when he pleaded guilty to the felon-in-possession charge. Weeks acknowledges, however, that this argument is foreclosed by still-binding Supreme Court precedent. See Almendarez-Torres v. United States, 523 U.S. 224, 226–27, 118 S.Ct. 1219, 1222–23 (1998) (recognizing that the “fact of an earlier conviction” may be constitutionally determined by a judge). 5 Case: 12-11104 Date Filed: 01/31/2013 Page: 6 of 15
ACCA, a defendant convicted under 18 U.S.C. § 922(g) is subject to a mandatory
minimum sentence of 15 years imprisonment if he has three prior convictions for a
violent felony or serious drug offense “committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1). In Almendarez-Torres v. United States, 523 U.S.
224, 226–27, 118 S.Ct. 1219, 1222–23 (1998), the Supreme Court held that the
government need not allege in its indictment or prove beyond a reasonable doubt
that a defendant had prior convictions in order for a sentencing court to use those
convictions for purposes of enhancing a sentence. The Supreme Court reaffirmed
that principle in Apprendi v. New Jersey, holding that, “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” 530 U.S. 466, 490, 120 S.Ct. 2348, 2362–63 (2000) (emphasis
added). More recently, the Supreme Court concluded that, in determining whether
a prior conviction constitutes a “violent felony” for ACCA purposes, a sentencing
court may not look beyond the statutory elements, charging documents, any plea
agreements or colloquies, explicit factual findings to which the defendant assented,
or some comparable judicial record of this information. Shepard, 543 U.S. at 16,
26, 125 S.Ct. at 1257, 1263.
Since Shepard, we have consistently held that Almendarez-Torres remains
good law, and we have explained that, for ACCA purposes, district courts may
6 Case: 12-11104 Date Filed: 01/31/2013 Page: 7 of 15
determine both the existence of prior convictions and the factual nature of those
convictions, including whether they were committed on different occasions, so
long as they limit themselves to Shepard-approved documents. See United States
v. Sneed, 600 F.3d 1326, 1332–33 (11th Cir. 2010) (holding that “sentencing
courts may look to certain facts underlying [a] prior conviction” in making the
“different occasions inquiry,” but must limit themselves to Shepard-approved
sources); United States v. Greer, 440 F.3d 1267, 1273–75 (11th Cir. 2006)
(explaining that Almendarez-Torres remains binding until it is overruled by the
Supreme Court and that it permits judges to determine both the existence and
factual nature of a prior conviction). We have also expressly rejected the notion
that the ACCA’s different-occasions determination, unlike the mere fact of a prior
conviction, must be submitted to a jury and proven beyond a reasonable doubt.
United States v. Spears, 443 F.3d 1358, 1361 (11th Cir. 2006).
Contrary to Weeks’ contentions, nothing in Nijhawan undermines our prior
decisions to the point of abrogation, such that we can disregard them. See Sneed,
600 F.3d at 1332 (explaining that, under the prior precedent rule, “a prior panel’s
holding is binding on all subsequent panels unless and until it is overruled or
undermined to the point of abrogation by the Supreme Court or by this court sitting
en banc”). In Nijhawan the Supreme Court considered whether immigration courts
could inquire into the underlying facts of an alien’s prior fraud conviction for
7 Case: 12-11104 Date Filed: 01/31/2013 Page: 8 of 15
purposes of determining whether the loss to the victims exceeded $10,000 and,
thus, constituted an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii). 557
U.S. at 32–34, 129 S.Ct. at 2297–99. The Supreme Court held that the loss
determination called for a “circumstance-specific approach,” unlike the
“categorical” or “modified categorical” approach for assessing whether a prior
conviction qualifies as a “violent felony” under the ACCA, and that an
immigration court could therefore consider the circumstances surrounding the prior
conviction without limiting its inquiry to Shepard documents. Id. at 34–43, 129
S.Ct. at 2299–2303. During its discussion, the Supreme Court also noted the
alien’s argument that a circumstance-specific approach “could create potential
constitutional problems in a subsequent criminal prosecution” under 8 U.S.C. §
1326, which criminalizes illegal reentry after removal and imposes a higher
maximum sentence when an alien’s removal followed a conviction for an
aggravated felony. Id. at 40, 129 S.Ct. at 2302. Without much discussion, the
Court stated that “any constitutional concern” was eliminated by the government’s
concession that a jury would have to find the loss amount beyond a reasonable
doubt at a later trial for illegal reentry. Id.
At most, Nijhawan merely implies that an immigration court’s findings may
not provide a constitutional basis for later sentencing enhancements if they are not
appropriately limited to Shepard sources. Because Nijhawan does not even
8 Case: 12-11104 Date Filed: 01/31/2013 Page: 9 of 15
suggest that circumstance-specific determinations made for ACCA purposes must
be proven to a jury beyond a reasonable doubt, we are bound by our prior holdings
that district courts may determine the factual nature of prior convictions, including
whether they were committed on different occasions, so long as they limit
themselves to Shepard-approved sources. See United States v. Kaley, 579 F.3d
1246, 1253 (11th Cir. 2009) (explaining that, to constitute an “overruling” for
purposes of the prior precedent rule, the Supreme Court decision “must be clearly
on point” and “actually abrogate or directly conflict with, as opposed to merely
weaken, the holding of the prior panel”).
Accordingly, the district court had the authority to apply the ACCA
enhancement based on its own factual findings.
III.
Weeks alternatively contends that, even if sentencing courts may
permissibly find that a defendant’s prior convictions were committed on different
occasions, the district court erred in doing so because the Shepard-approved
documents presented by the government were insufficient to support such a
finding. Weeks maintains that because the government did not introduce the
charging document to establish the timing of his aggravated battery offense, there
was no basis upon which the district court could find that the offense was
committed on a separate occasion from his burglary convictions. As to the
9 Case: 12-11104 Date Filed: 01/31/2013 Page: 10 of 15
burglary convictions, Weeks first contends that the district court could not rely on
the dates in the charging documents—November 27, 1997, and December 2,
1997—because the date of a crime is not an element of the offense. He also argues
that the mere fact that two different structures were involved in the December 2
burglaries is not determinative of the different-occasions inquiry. And for the first
time on appeal, he maintains that he could have pleaded guilty to one count of
burglary based solely on the conduct of his two accomplices, making it impossible
to determine whether he himself burglarized more than one structure or whether
the burglaries were committed successively.
We review de novo whether crimes were committed on different occasions
within the meaning of the ACCA. United States v. Canty, 570 F.3d 1251, 1254–55
(11th Cir. 2009). However, we review specific objections or arguments not raised
in the district court only for plain error. United States v. Massey, 443 F.3d 814,
819 (11th Cir. 2006) (holding that specific objections to a sentence must be clearly
raised before the district court in order to be properly preserved for appeal, and that
a defendant “fails to preserve a legal issue for appeal if the factual predicates of an
objection are included in the sentencing record, but were presented to the district
court under a different legal theory”).
To satisfy the ACCA’s different-occasions requirement, a defendant must
have at least three prior convictions for crimes “that are temporally distinct.”
10 Case: 12-11104 Date Filed: 01/31/2013 Page: 11 of 15
Sneed, 600 F.3d at 1329 (quotation marks omitted). “[S]o long as [the] 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). “Distinctions in time and place are usually sufficient to separate
criminal episodes from one another even when the gaps are small,” and two
offenses are considered distinct if “some temporal ‘break’ occurs between [them].”
Id. at 690.
Weeks has not demonstrated that the district court erred in determining that
his three burglary offenses were committed on different occasions. The charging
documents, which indicated that one of the burglary offenses was committed five
days before the other offenses, were sufficient to establish that one of those
offenses was temporally distinct for ACCA purposes. See United States v. Turner,
626 F.3d 566, 572 (11th Cir. 2010) (noting that sentencing enhancements need
only be established by a preponderance of the evidence). Moreover, the charging
documents showed that the burglaries involved three separate structures and
victims, which adequately supports the district court’s determination that they each
constitute separate criminal episodes. The fact that the December 2 burglaries
occurred within close proximity to one another is not determinative, as even small
gaps in time and place are sufficient to establish separate offenses. See Pope, 132
F.3d at 692 (holding that the burglary of two offices separated by 200 yards, and
11 Case: 12-11104 Date Filed: 01/31/2013 Page: 12 of 15
committed in immediate succession, qualified as separate offenses under the
ACCA); United States v. Proch, 637 F.3d 1262, 1265–66 (11th Cir. 2011) (holding
that two burglary offenses “committed on the same day at separate addresses on
the same street” constituted separate and distinct criminal episodes).
Although Weeks now contends that, on December 2, 1997, he could have
remained in one of the burglarized buildings while his two accomplices
simultaneously burglarized the other, he did not make that argument before the
district court. To the contrary, he merely argued that he could not have formulated
a separate intent to burglarize the second location in the 13 seconds that it would
have taken him to walk the 56 feet between the two buildings. We therefore
review his current argument only for plain error. See Massey, 443 F.3d at 819.
Generally, there “can be no plain error where there is no precedent from the
Supreme Court or this Court directly resolving [an issue].” United States v.
Castro, 455 F.3d 1249, 1253 (11th Cir. 2006). Weeks fails to identify any binding
precedent from this Court or the Supreme Court holding that a different-occasions
determination cannot be made where a charging document, though listing separate
offense locations, fails to specify whether all of the named defendants participated
as principals in each offense. It is also noteworthy that the charging document for
the December 2 burglaries alleges that Weeks and his cohorts unlawfully entered
both buildings, and nowhere indicates that Weeks merely participated as an
12 Case: 12-11104 Date Filed: 01/31/2013 Page: 13 of 15
accomplice in one of the burglaries. Under the circumstances, Weeks has not
shown that the district court plainly erred in concluding that he physically
participated in both of the December 2 burglaries and that, as a result, they were
successive rather than simultaneous. As we have said in a related context, the
“ACCA does not require metaphysical certainty” and “courts should not refuse to
apply it because of divorced-from-reality, law-school-professor-type hypotheticals
that bear no resemblance to what actually goes on.” United States v. Rainer, 616
F.3d 1212, 1216 (11th Cir. 2010) (quotation marks omitted).
Because Weeks has not demonstrated that the district court erred in
classifying his three burglary convictions as separate predicate offenses under the
ACCA, we need not consider whether Weeks’ conviction for aggravated battery
can serve as a fourth qualifying offense.
IV.
As a final argument, Weeks contends that his three burglary convictions
cannot serve to enhance his sentence because the residual clause of the ACCA,
which defines a “violent felony” as any offense that “otherwise involves conduct
that presents a serious potential risk of physical injury to another,” is
unconstitutionally vague. See 18 U.S.C. § 924(e)(2)(B)(ii). That argument is
unavailing for two distinct reasons. First, the Supreme Court has twice expressed
the view that the residual clause of the ACCA is not unconstitutionally vague,
13 Case: 12-11104 Date Filed: 01/31/2013 Page: 14 of 15
which effectively forecloses us from adopting a contrary conclusion. See James v.
United States, 550 U.S. 192, 210 n.6, 127 S.Ct. 1586, 1598 n.6 (2007) (rejecting
the view that the residual clause is unconstitutionally vague because it “is not so
indefinite as to prevent an ordinary person from understanding what conduct it
prohibits”); Sykes v. United States, 564 U.S. –, 131 S.Ct. 2267, 2277 (2011)
(stating the residual clause “states an intelligible principle and provides guidance
that allows a person to conform his or her conduct to the law”) (internal quotation
marks omitted); see also United States v. Chitwood, 676 F.3d 971, 978 n.3 (11th
Cir. 2012) (stating that the Supreme Court’s position “appears to foreclose a
conclusion, at least by a lower court such as our own, that the residual clause is
unconstitutionally vague”).
Second, Weeks’ contention rests on the erroneous view that a prior
conviction under Florida’s burglary statute, Fla. Stat. § 810.02, can qualify as a
“violent felony” only under the ACCA’s residual clause, and never under its
enumerated-offenses clause. The ACCA defines a “violent felony” as, among
other things, an offense that “is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). The
Supreme Court has adopted the generic meaning of “burglary” for purposes of the
ACCA, holding that a burglary conviction satisfies the enumerated-offenses clause
14 Case: 12-11104 Date Filed: 01/31/2013 Page: 15 of 15
if it includes “the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime.” Taylor v.
United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 2158 (1990). Although
Florida’s burglary statute facially encompasses both generic and non-generic
burglaries, a conviction under the statute can still qualify as a generic burglary if
the charging documents or other Shepard-approved sources show that the offense
involved unlawful entry into a building or structure. See United States v.
Matthews, 466 F.3d 1271, 1274–75 (11th Cir. 2006); see also United States v.
Rainer, 616 F.3d 1212, 1215 (11th Cir. 2010) (explaining that “a conviction under
a non-generic burglary statute” still qualifies as a violent felony under the ACCA’s
enumerated-offenses clause “if the indictment shows that the defendant was
charged only with a burglary of a building”) (quotation marks, alterations, and
ellipsis omitted). Because the charging documents show that Weeks was charged
with unlawfully entering into three separate buildings with intent to commit a
crime, his convictions qualify as generic burglaries under the ACCA’s enumerated-
offenses clause and, thus, we do not even have to apply the residual clause.
For these reasons, we affirm Weeks’ mandatory minimum sentence under
the ACCA.
AFFIRMED.