United States v. Lazaro Ginebra-Vera , 522 F. App'x 827 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15401
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20877-MGC-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAZARO GINEBRA-VERA,
a.k.a. Lazaro Ginebra,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 2, 2013)
Before TJOFLAT, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
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Lazaro Ginebra-Vera appeals his sentence of 188-months imprisonment and
3 years of supervised release, arguing that the district court erred in enhancing his
sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He
contends that the district court did not have enough evidence to conclude that two
of his three prior convictions were from “separate and distinct criminal episodes.”
See United States v. Pope, 132 F.3d 684, 689 (11th Cir. 1998) (A defendant may
only be subject to an ACCA enhancement “if each of the three previous
convictions arose out of a separate and distinct ‘criminal episode’”). Ginebra-Vera
also claims that the district court erred in using his previous conviction for
conspiracy to traffic cocaine as a predicate offense, because under Florida law, we
may not assume that the purchase of a large amount of drugs “necessarily give[s]
rise to . . . possession.” United States v. Shannon, 631 F.3d 1187, 1189 (11th Cir.
2011). The government responds that Ginebra-Vera’s two prior convictions were
separate and distinct because they occurred on different dates and involved
different victims, and that this Court has held that Ginebra-Vera’s Florida drug
crime is a predicate offense under § 924(e).
I.
“[W]hether crimes were committed on occasions different from one
another, within the meaning of the ACCA” is a question of law that we review de
novo. United States v. Canty, 570 F.3d 1251, 1254–55 (11th Cir. 2009) (quotation
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marks omitted). The government bears the burden of showing that “the three
previous convictions arose out of a separate and distinct criminal episode.” United
States v. Sneed, 600 F.3d 1326, 1329 (11th Cir. 2010) (quotation marks omitted).
“Two offenses are distinct if some temporal break occurs between them.”
Id. at 1330 (quotation marks and alterations omitted). Here, the government
presented evidence that the crimes occurred on different dates. The government
gave the sentencing court the Judgment of Conviction and the Information for each
of the two crimes at issue. The Information for the first conviction—one count of
robbery with a pistol, and one count of unlawful possession of a firearm while
engaged in a criminal offense (Conviction One)—shows that the offense occurred
on March 24, 1981. The Information for the second conviction—one count of
second degree attempted murder, one count of robbery, and one count of unlawful
possession of a firearm while engaged in a felony offense (Conviction Two)—
shows that the offense occurred on March 30, 1981. 1 The Informations also
showed that the two offenses involved at least two different victims.
The district judge properly relied on the Informations in determining that the
crimes occurred on different dates, and thus were separate and distinct crimes. See
Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 1263 (2005) (A
1
It does not matter for the purposes of § 924(e) that Ginebra-Vera pled guilty to Convictions
One and Two on the same day. United States v. Wilks, 464 F.3d 1240, 1244 (11th Cir. 2006)
(“[T]he language of § 924(e)(1) requires only that the prior felonies or offenses be ‘committed
on occasions different from one another,’ not that the convictions be obtained on separate
occasions.”).
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sentencing judge may consider “the terms of the charging document” in deciding
whether a crime is a predicate offense under § 924(e).). The evidence in the
Information for each offense was sufficient for the sentencing judge to determine
that the predicate offenses at issue were “separate and distinct.”
II.
In his plea agreement, Ginebra-Vera pled guilty to § 924(e) and agreed that
his Florida drug conviction was one of his three previous felonies. At the plea
colloquy, Ginebra-Vera said he understood the terms of the plea agreement,
including that “his three prior felony convictions . . . qualify as either violent
felonies or serious drug offenses,” qualifying him for ACCA status. Ginebra-Vera
did not object to the treatment of the Florida drug conviction as a predicate offense
either in his objections to the presentence report (PSI), or in his sentencing
memorandum. At the sentencing hearing, Ginebra-Vera did not object to, or even
mention, the treatment of the Florida drug crime as a predicate offense. Nor did he
object to the facts of this prior conviction as detailed in the PSI. Thus, after
agreeing that the crime counted as an ACCA predicate offense, Ginebra-Vera did
not argue before the district court that the crime should not be a predicate offense,
despite having several opportunities to do so.
Because Ginebra-Vera expressly acknowledged through his plea agreement
and plea colloquy that the Florida drug offense is a predicate offense, and he did
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not challenge this before the district court, he invited any error that he now claims
exists. United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). Thus, he is
precluded from claiming that the court erred in treating his Florida drug offense as
a predicate offense under § 924(e). Id.
III.
For these reasons, Ginebra-Vera’s sentence is AFFIRMED.
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