United States v. Brandon Allen , 488 F. App'x 377 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11640
Non-Argument Calendar
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D.C. Docket No. 8:10-cr-00148-VMC-MAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDON ALLEN,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 24, 2012)
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Brandon Allen appeals the sentence imposed following his conviction for
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possession with intent to distribute five grams or more of crack cocaine and less
than fifty grams of marijuana, in violation of 21 U.S.C. § 841, and possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e).
After a thorough review of the record, we affirm.
I.
Allen was indicted for numerous drug offenses and a firearm offense. He
pleaded guilty to possession with intent to distribute crack cocaine and marijuana
(Count 5) and possession of a firearm by a convicted felon (Count 7). Based on
the amount of crack involved, Allen faced a mandatory minimum sentence of five
years’ imprisonment on Count 5. On Count 7, Allen faced a mandatory minimum
sentence of fifteen years’ imprisonment.
Prior to sentencing, the probation officer prepared a presentence
investigation report (PSI), calculating Allen’s guideline range based on an
adjusted offense level of 34 under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e) and U.S.S.G. § 4B1.4, because Allen had three prior felony drug
convictions that were committed on different occasions from one another.1 The
1
The PSI identified Allen as both a career criminal under § 4B1.1 and an armed career
criminal under the ACCA, § 4B1.4. Allen does not challenge his career-offender status. Thus,
he has abandoned any argument with respect to that issue. United States v. Smith, 416 F.3d
1350, 1354 (11th Cir. 2005).
2
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probation officer identified the predicate offenses as cocaine sales on February 4
and February 7, 2005, and possession with intent to distribute cocaine in 2008.2
Allen’s criminal history category was VI whether based on Allen’s criminal
history points or the category assigned under the ACCA. With a total offense
level of 31 after a reduction for acceptance of responsibility, the applicable
guideline range was 188 to 235 months’ imprisonment. Allen objected to the
application of the ACCA, arguing that the two 2005 drug sales were sentenced on
the same day and there was no evidence that the two crimes were committed on
different occasions. Thus, he argued, they should count only as a single offense
for purposes of the ACCA.
At sentencing, the government submitted the charging documents for the
two 2005 offenses. The district court noted that, although the cocaine sales were
two counts in the same indictment and were sentenced on the same day, the crimes
occurred three days apart. Accordingly, the court concluded that the two sales
were distinct offenses under the ACCA.
Allen then argued that he should be sentenced under the newly-enacted Fair
2
Allen does not dispute that the 2008 conviction qualifies as a predicate offense.
3
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Sentencing Act (FSA),3 which would have removed the five-year mandatory
minimum sentence he faced for Count 5 and lowered the base offense level and
corresponding guideline range he faced. The court declined to apply the FSA and
sentenced Allen to 188 months’ imprisonment.
On appeal, Allen raises two issues: First, he argues that he did not qualify as
an armed career criminal because he did not have three prior convictions for drug
offenses. Second, he argues that the court should have sentenced him under the
FSA. We address each in turn.
II.
Allen argues that his two drug sales on February 4 and 7, 2005, do not
qualify as separate predicate offenses under the ACCA because the two sales were
one single criminal episode. He notes that both sales occurred at the same
location, within a short time period, and involved the same drug. He further
asserts that the two sales presumably involved the same confidential buyer or at
least the same investigating officer.
Under the ACCA, an individual convicted under § 922(g) is subject to a
mandatory minimum fifteen-year sentence if he has three previous convictions for
3
Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (effective Aug. 3,
2010).
4
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a violent felony or serious drug offense “committed on occasions different from
one another.” 18 U.S.C. § 924(e)(1). 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). The government bears the
burden of proving that each previous conviction “arose out of a separate and
distinct criminal episode.” United States v. Sneed, 600 F.3d 1326, 1329 (11th Cir.
2010) (citation and internal quotation marks omitted).
Under § 924(e)’s different-occasions inquiry, a sentencing court must
determine whether “the perpetrator had a meaningful opportunity to desist his
activity before committing the second offense.” United States v. Pope, 132 F.3d
684, 690, 692 (11th Cir. 1998). Although the predicate offenses must be distinct,
even a small difference in time or place distinguishes convictions for purposes of
the ACCA. See Sneed, 600 F.3d at 1330; accord Pope, 132 F.3d at 690 (“Mere
temporal proximity is ordinarily insufficient to merge multiple offenses into a
single criminal episode.”). “[T]he ‘successful’ completion of one crime plus a
subsequent conscious decision to commit another crime makes that second crime
distinct from the first.” Pope, 132 F.3d at 692. “If some temporal break happens
between two offenses,” the offenses are considered distinct. United States v.
Proch, 637 F.3d 1262, 1265 (11th Cir. 2011). “It does not matter for § 924(e)
5
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purposes that the legal consequences of a defendant’s separate criminal acts were
imposed upon him on the same day.” United States v. Wilks, 464 F.3d 1240, 1244
(11th Cir. 2006). The district court is limited in the documents it may review to
determine if the ACCA applies. See, e.g. Shepard v. United States, 544 U.S. 13,
23-26 (2005). The court may consider “the terms of the charging document, the
terms of the plea agreement or transcript of the colloquy between the judge and
defendant in which the factual basis for the plea was confirmed by the defendant,
or . . . some comparable judicial record of this information.” Id. at 26.
We conclude that the district court properly determined that the two sales
that formed Allen’s 2005 convictions were committed on different occasions. The
charging document showed that the drug sales occurred on two different dates.
Although the government did not present evidence as to what occurred between
the February 4 and February 7 drug sales, the three-day break shows that Allen
“had a meaningful opportunity to desist his activity before committing the
[second] offense.” See Pope, 132 F.3d at 690. Moreover, the temporal break is
enough for the offenses to be considered distinct under the ACCA. See Proch,
637 F.3d at 1265.
III.
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Allen next argues that the district court erroneously declined to apply the
FSA retroactively to his offenses. He contends that the FSA would have rendered
the mandatory minimum sentence on Count 5 inapplicable and lowered his overall
guideline range.
We review de novo the district court’s authority to impose a sentence below
the statutory minimum. United States v. Gomes, 621 F.3d 1343, 1345 (11th Cir.
2010), cert. denied, 131 S. Ct. 1833 (2011). If the district court erroneously
concluded that it lacked authority to impose such a sentence, we will vacate and
remand for resentencing unless the party defending the sentence persuades us that
the district court would have imposed the same sentence absent the erroneous
decision. Williams v. United States, 503 U.S. 193, 203 (1992).
The FSA, which was signed into law on August 3, 2010, adjusted the
amount of drugs applicable to base offense levels for crack offenses and increased
the amount of crack required to trigger certain mandatory minimums. Gomes, 621
F.3d at 1346. There is no dispute that, under the Act, the amount of drugs for
which Allen was responsible would no longer trigger the five-year mandatory
minimum sentence he faced on Count 5. Id. There also can be no dispute that
Allen should have been sentenced under the FSA. See Dorsey v. United States,
567 U.S. __, 132 S. Ct. 2321, 2335 (2012).
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Nevertheless, we conclude that the court’s error is harmless. Although the
FSA would have lowered Allen’s offense level and guideline range if he had been
sentenced based on the amount of drugs involved, it does not impact his sentence
under the ACCA. Allen’s offense level in this case was 34 under the ACCA
because he possessed a firearm in connection with his drug crime. See U.S.S.G.
§ 4B1.4(b). Thus, even if the court applied the FSA, there would be no change in
Allen’s offense level. Additionally, Allen’s criminal history category remains at
VI under the ACCA, see U.S.S.G. § 4B1.4(c), and based on the number of points
he amassed. Accordingly, because the FSA does not affect Allen’s offense level
or guideline range, the error was harmless.4 See Williams, 503 U.S. at 203.
AFFIRMED.
4
We note that Allen would no longer be subject to the five-year mandatory minimum
sentence on Count 5 under the FSA. But, he still faced a fifteen-year mandatory minimum
sentence on Count 7. The sentence imposed exceeds the five-year mandatory minimum. Thus,
there is no need to remand Allen’s case.
8