USCA11 Case: 22-12286 Document: 23-1 Date Filed: 05/30/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12286
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNATHAN COLE WARD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:21-cr-00107-JB-MU-1
____________________
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2 Opinion of the Court 22-12286
Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
Johnathan Cole Ward appeals his 180-month sentence for
possession of a firearm by a convicted felon. For the first time on
appeal, he argues that the district court erred in sentencing him as
an armed career criminal because the government failed to estab-
lish that his three prior Alabama robbery offenses were committed
on separate occasions. In support of his position, he has moved this
Court to supplement the record on appeal to include state-court
documents concerning his robbery convictions.
We grant the motion to supplement the record. But because
Ward failed to show that the district court committed plain error
in applying the statutory sentence enhancement, we affirm.
I.
Ward pleaded guilty to possessing a firearm as a convicted
felon in violation of
18 U.S.C. § 922(g)(1). The probation officer
prepared a presentence investigation report (PSR), which stated
that Ward was subject to an enhanced sentence under the Armed
Career Criminal Act because he had three prior convictions for a
violent felony or serious drug offense. See
18 U.S.C. § 924(e). Spe-
cifically, the PSR reported that Ward pleaded guilty in April 2009
to three counts of Alabama third-degree robbery charged in three
separate (but sequentially numbered) cases. In language parroting
the state charging documents, the PSR described the three rob-
beries as follows: (1) the use of force against Rachel Woods to steal
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22-12286 Opinion of the Court 3
cash from a Circle K; (2) the use of force against Gwendolyn Craig
to steal cash from a Shell station; and (3) the use of force against
Kathy Huffmaster to steal cash from a BP service station.
Ward filed objections to the PSR’s application of the armed-
career-criminal sentence enhancement on the ground that Ala-
bama third-degree robbery is not a violent felony under § 924(e)—
an argument that is foreclosed by our precedent. See United States
v. Hunt,
941 F.3d 1259, 1262 (11th Cir. 2019). Ward also filed police
reports from the three robberies, arguing that the sentence en-
hancement should not apply because the reports showed that he
had not actually used violence during the offenses—an argument
that is also foreclosed by binding precedent. See Descamps v. United
States,
570 U.S. 254, 267–68 (2013); United States v. Braun,
801 F.3d
1301, 1304 (11th Cir. 2015). Among other things, the police reports
indicated that the robberies took place on three different dates, and
that the three gas stations were located on different streets in Mo-
bile and Theodore, Alabama. The district court overruled Ward’s
objections and sentenced him to 180 months in prison, the manda-
tory minimum sentence under § 924(e).
This appeal followed. In this Court, Ward argues for the
first time that the district court plainly erred by sentencing him as
an armed career criminal because his three robbery offenses were
not committed on different occasions, as required by § 924(e). He
has filed a motion to supplement the record on appeal with copies
of the state charging documents (which contain essentially the
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4 Opinion of the Court 22-12286
same information as the PSR) and court documents reflecting his
guilty pleas and sentence in the three consolidated cases.
II.
Ordinarily, we review a district court’s determination that a
defendant’s prior felony offenses were committed on different oc-
casions (as required by § 924(e)(1)) de novo. United States v. Dudley,
5 F.4th 1249, 1255 (11th Cir. 2021). But where, as here, a defendant
raises an issue for the first time on appeal, our review is for plain
error only. See Fed. R. Crim. P. 52(b); Dudley, 5 F.4th at 1255. “To
establish plain error, a defendant must show: (1) an error; (2) that
was obvious; (3) that affected the defendant’s substantial rights; and
(4) that seriously affected the fairness, integrity, or public reputa-
tion of judicial proceedings.” Dudley, 5 F.4th at 1255.
III.
The Armed Career Criminal Act (ACCA) mandates a mini-
mum 15-year sentence for possession of a firearm in violation of
18
U.S.C. § 922(g)(1) if the defendant has three prior convictions for
violent felonies “committed on occasions different from one an-
other.” 18 U.S.C. 924(e)(1). District courts may determine the na-
ture of a defendant’s prior convictions at sentencing, including
whether the offenses were committed on different occasions, “so
long as they limit themselves to Shepard-approved documents.”
United States v. Longoria,
874 F.3d 1278, 1281 (11th Cir. 2017).
So-called “Shepard documents” include “the charging docu-
ment, the terms of a plea agreement or transcript of colloquy be-
tween judge and defendant in which the factual basis for the plea
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22-12286 Opinion of the Court 5
was confirmed by the defendant,” or “some comparable judicial
record of this information.” Shepard v. United States,
544 U.S. 13, 26
(2005). District courts may also rely on undisputed statements of
fact in the PSR. United States v. McCloud,
818 F.3d 591, 595 (11th
Cir. 2016). Courts generally may not rely on police reports in de-
termining whether predicate offenses were committed on different
occasions. United States v. Sneed,
600 F.3d 1326, 1332 (11th Cir.
2010).
Whether crimes were committed “on occasions different
from one another” for purposes of an ACCA sentence enhance-
ment is a “multi-factored” inquiry focusing on the ordinary usage
of the term “occasion” as referring to “an event or episode.”
Wooden v. United States,
142 S. Ct. 1063, 1070 (2022). Relevant fac-
tors include the timing, proximity of location, and character and
relationship of the offenses.
Id. at 1071. “In many cases, a single
factor—especially of time or place—can decisively differentiate oc-
casions.”
Id.
Applying this standard, we conclude that the district court
did not plainly err in enhancing Ward’s sentence under ACCA.
Even if the district court was required to disregard the dates and
addresses in the police reports that Ward himself submitted and
relied upon (a question we do not reach here), the undisputed facts
in the PSR indicated that the robberies took place at three different
locations and involved three different victims. Whether that infor-
mation would be sufficient to meet the government’s burden of
proving the different-occasions requirement when the defendant
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6 Opinion of the Court 22-12286
raises the issue in the district court is a close question. But on plain-
error review, “the defendant has the burden of establishing each of
the four requirements for” relief. Greer v. United States,
141 S. Ct.
2090, 2097 (2021). And the requirement that an error be “plain” is
met only if the error “is ‘clear’ or ‘obvious’—that is, if ‘the explicit
language of a statute or rule’ or ‘precedent from the Supreme
Court or this Court directly resolv[es]’ the issue.” United States v.
Innocent,
977 F.3d 1077, 1081 (11th Cir. 2020) (alteration in the orig-
inal) (quoting United States v. Olano,
507 U.S. 725, 734 (1993), and
United States v. Hesser,
800 F.3d 1310, 1325 (11th Cir. 2015)). A close
call or even a questionable decision does not amount to plain error.
See Henderson v. United States,
568 U.S. 266, 278 (2013) (Rule 52(b)’s
“requirement that an error be ‘plain’ means that lower court deci-
sions that are questionable but not plainly wrong (at time of trial
or at time of appeal) fall outside the Rule’s scope”). The district
court’s decision here was not plainly wrong, so we must affirm.
IV.
The district court did not plainly err in sentencing Ward as
an armed career criminal under
18 U.S.C. § 924(e). We therefore
AFFIRM Ward’s conviction and sentence. We GRANT his motion
to supplement the record on appeal.
AFFIRMED.
