United States v. Willis C. Cochran

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 1, 2023
• Docket: 22-5949
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0491n.06

No. 22-5949

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Dec 01, 2023 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY WILLIS C. COCHRAN, ) Defendant-Appellant. ) OPINION )

Before: BUSH, LARSEN, and MURPHY, Circuit Judges.

LARSEN, Circuit Judge. Willis Cochran pleaded guilty to aiding and abetting bank

robbery. He now appeals the district court’s application of the career-offender enhancement. For

the reasons stated, we AFFIRM.

I.

On January 9, 2020, John Knotts robbed a bank in Ashland, Kentucky. After Knotts

implied that he had a weapon and demanded money, the teller put marked bills on the counter.

Knotts took $1,065. He left the bank in a white van that he and Cochran had stolen in preparation

for the robbery. Knotts drove to an apartment complex where Cochran was waiting for him in a

different vehicle. They abandoned the stolen van by a dumpster and drove to a different bank

where Knotts used $700 of the stolen loot to make a payment on a loan. Knotts gave Cochran

$240 for his assistance. No. 22-5949, United States v. Cochran

A grand jury charged Cochran with aiding and abetting bank robbery by force or

intimidation in violation of 18 U.S.C. § 2113. Cochran entered a plea agreement that preserved

his right to appeal his sentence. The presentence report (PSR) calculated a Guidelines range of

151 to 188 months, including a career-offender enhancement under U.S.S.G. § 4B1.1(b)(3).

Cochran did not object to the career-offender enhancement. The district court accepted the PSR’s

recommendation and sentenced Cochran to 151 months’ imprisonment. Cochran timely appealed

his sentence.

II.

Cochran raises only one argument on appeal: that the district court erred by assessing the

career-offender enhancement pursuant to U.S.S.G. § 4B1.1. Because Cochran did not object to

the enhancement below, our review is for plain error only. United States v. Thomas, 969 F.3d 583,

584 (6th Cir. 2020) (per curiam). Under this standard, Cochran must show (1) error that (2) “was

clear or obvious,” (3) “affected [his] substantial rights,” and (4) “affected the fairness, integrity, or

public repudiation of judicial proceedings.” United States v. Babcock, 753 F.3d 587, 590–91 (6th

Cir. 2014) (quoting United States v. Massey, 663 F.3d 852, 856 (6th Cir. 2011)).

Section 4B1.1(a) provides that “[a] defendant is a career offender if (1) the defendant was

at least eighteen years old at the time the defendant committed the instant offense of conviction;

(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled

substance offense; and (3) the defendant has at least two prior felony convictions of either a crime

of violence or a controlled substance offense.” Cochran limits his argument to the third factor,

claiming that he did not have at least two prior felony convictions.

U.S.S.G. 4B1.2(c) clarifies that the defendant’s instant conviction must follow at least two

felony convictions “counted separately” under § 4A1.1. Convictions “always are counted

-2- No. 22-5949, United States v. Cochran

separately if . . . separated by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2). And “[i]f there is

no intervening arrest, prior sentences are counted separately unless” they result from offenses “in

the same charging instrument” or the “sentences were imposed on the same day.” Id.

According to the PSR—which Cochran did not challenge below and does not challenge

now—Cochran had five robbery-related convictions, all of which added points to his criminal

history. Each of those convictions was separated by an intervening arrest. And Cochran does not

argue that the underlying offenses were not “crime[s] of violence” under § 4B1.1. The district

court did not err by imposing the career-offender enhancement, much less plainly so.

Cochran argues that the district court should have considered the Supreme Court’s decision

in Wooden v. United States, 595 U.S. 360 (2022). But that case is inapt. The issue in Wooden was

whether ten separate convictions arising from a single criminal episode may count ten times under

the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). Wooden did not involve the

career-offender enhancement in U.S.S.G. § 4B1.1. Cochran correctly notes that both designations

require courts to find qualifying predicate offenses before applying the enhancements. But the

tests for determining when those predicate offenses count are entirely different. Under the ACCA,

convictions count separately when they are “committed on occasions different from one another.”

18 U.S.C. § 924(e)(1). Using the ordinary meaning of the word “occasion,” the Supreme Court

held that “multiple crimes may occur on one occasion even if not at the same moment.” Wooden,

595 U.S. at 366. By contrast, the “counted separately” test under U.S.S.G. § 4A1.2(a)(2) asks

whether there has been an intervening arrest, or whether the convictions resulted from offenses

charged “in the same charging instrument” or whose “sentences were imposed on the same day.”

Cochran did not object to the presentence report, so he accepted its factual allegations. United

States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc); see also Fed. R. Crim. P. 32(i)(3)(A).

-3- No. 22-5949, United States v. Cochran

And Cochran does not dispute that he has at least five prior felony offenses separated by

intervening arrests. The U.S.S.G. § 4B1.1 career-offender enhancement plainly applies.

Cochran also argues that he had a right to have a jury determine whether he had qualifying

predicate offenses for purposes of the career-offender enhancement. Cochran did not raise this

issue below, so it too is reviewed for plain error. See Thomas, 969 F.3d at 584. Cochran has not

met that standard. Cochran does little to develop his jury argument. At points he suggests that

Wooden itself mandates the jury’s involvement in the determination of the facts underlying the

career-offender enhancement. If that is his argument, he is mistaken. As explained above, Wooden

involved the ACCA, not a Guidelines enhancement. And, in any event, Wooden expressly

declined to address “whether the Sixth Amendment requires that a jury, rather than a judge, resolve

whether prior crimes occurred on a single occasion.” Wooden, 595 U.S. at 365 n.3.1 If Cochran’s

argument is that application of the § 4B1.1 career-offender enhancement violates the Sixth

Amendment because it was based on facts not found by a jury, it is likewise unavailing. Cochran

was not entitled to jury findings to establish the predicate qualifying offenses because the

Guidelines are advisory. Vonner, 516 F.3d at 385.

The district court did not err in assessing the § 4B1.1 enhancement.

***

We AFFIRM.

1 Although the Supreme Court recently granted certiorari to review this issue, see Erlinger v. United States, No. 23-370, 2023 WL 8007339 (Nov. 20, 2023), its resolution would not matter here because this case involves the advisory Guidelines, not the ACCA. -4-