United States v. Justin Robinson ( 2016 )

Case: 15-13691 Date Filed: 10/05/2016 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13691
Non-Argument Calendar
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D.C. Docket No. 8:14-cr-00264-EAK-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTIN ROBINSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(October 5, 2016)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 15-13691 Date Filed: 10/05/2016 Page: 2 of 3
Justin Robinson was convicted of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g), and sentenced to 180 months’ imprisonment
pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He now
appeals, raising two constitutional challenges to his ACCA sentence. Reviewing
those challenges de novo, see United States v. Steed, 548 F.3d 961, 978 (11th Cir.
2008) (per curiam), we find no error. Accordingly, we affirm.
First, Robinson argues that his sentence violates the Fifth and Sixth
Amendments because the district court relied on non-elemental facts in
determining that his ACCA-qualifying prior offenses were committed on different
occasions. He claims that, under the Supreme Court’s reasoning in Descamps v.
United States, 570 U.S. ___, 133 S. Ct. 2276 (2013) and Johnson v. United States,
576 U.S. ___, 135 S. Ct. 2551 (2015), a sentencing court cannot make a different-
occasions finding based on non-elemental facts, even if those facts are derived
from Shepard 1 documents. However, we have held that sentencing courts may use
Shepard documents to “determine both the existence of prior convictions and the
factual nature of those convictions, including whether they were committed on
different occasions.” United States v. Weeks, 711 F.3d 1255, 1259 (11th Cir. 2013)
1
Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 1257 (2005) (holding that
sentencing courts can only consider certain documents when determining the factual nature of a
defendant’s prior convictions).
2
Case: 15-13691 Date Filed: 10/05/2016 Page: 3 of 3
(per curiam). And neither Descamps nor Johnson abrogated that holding, 2 as those
decisions concerned issues distinct from the different-occasions inquiry. See
Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir.
2003) (per curiam) (“While an intervening decision of the Supreme Court can
overrule the decision of a prior panel of our court, the Supreme Court decision
must be clearly on point.”). Therefore, this challenge fails.
Second, Robinson asserts that his ACCA sentence violates the Fifth and
Sixth Amendments because the fact of his prior convictions was not charged in his
indictment and not proven to the jury beyond a reasonable doubt. But this
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118
S. Ct. 1219 (1998). 3
AFFIRMED.
2
Robinson concedes this point, noting that he presents his Descamps/Johnson argument
for the purpose of appellate preservation and for review by this court en banc or by the Supreme
Court.
3
Robinson acknowledges that Almendarez-Torres precludes this claim, but he seeks to
preserve the claim for further review.
3