United States v. Keys ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5259
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AARON BRYANT KEYS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-05-258)
Submitted: September 29, 2006 Decided: December 5, 2006
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher F. Cowan, COWANOWEN, P.C., Richmond, Virginia, for
Appellant. Reginald I. Lloyd, United States Attorney, A. Lance
Crick, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aaron Bryant Keys pled guilty to possession of a firearm
by a convicted felon, 18 U.S.C.A. §§ 922(g)(1), 924(e) (West 2000
& Supp. 2006), and was sentenced as an armed career criminal to the
mandatory minimum term of fifteen years imprisonment. Although
Keys did not contest his status as an armed career criminal in the
district court, he contends on appeal that the court committed
reversible error in sentencing him as an armed career criminal
because (1) it failed to find that his prior burglary conviction
was a “generic burglary” that qualified as a violent felony; (2)
the sentence violated his Sixth Amendment right under United
States v. Booker, 543 U.S. 220 (2005), and Shepard v. United
States, 544 U.S. 13 (2005); and (3) his two prior drug convictions
should have been counted as one because they were part of a single
criminal episode. We affirm.
Because Keys did not raise any of the issues presented
here in the district court, our review is for plain error. United
States v. Olano, 507 U.S. 725, 732-37 (1993); United States v.
Mackins, 315 F.3d 399, 406 (4th Cir. 2003).
First, under § 924(e)(1), a defendant is an armed career
criminal if he has three prior convictions for either a violent
felony or a serious drug offense. The definition of a “violent
felony” includes burglary. 18 U.S.C.A. § 924(e)(2)(B)(ii). In
Taylor v. United States, 495 U.S. 575, 598-99 (1990), the Supreme
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Court held that “burglary,” for purposes of § 924(e), is limited to
“generic” burglary, that is, the “unlawful or unprivileged entry
into, or remaining in, a building or structure with intent to
commit a crime.” When the issue is contested, and the district
court must determine whether a prior conviction constitutes a
violent felony, the court must “look only to the fact of conviction
and the statutory definition of the prior offense.” Taylor, 495
U.S. at 602 (quoted in United States v. Simms, 441 F.3d 313, 315
(4th Cir. 2006), cert. denied, 127 S. Ct. 233 (2006)). Taylor held
that a court normally could look only to the fact of the conviction
and the statutory definition, but because some states define
burglary broadly, to include entry into boats and cars, Taylor held
that the district court in such cases might examine the indictment
or information and the jury instructions to determine whether the
defendant was charged with entry of a building and the jury had to
so find in order to convict. Shepard, 544 U.S. at 16-17.
Here, Keys correctly points out that South Carolina law
defines a “building,” for purposes of the burglary statutes, S.C.
Code Ann. §§ 16-11-311 to 16-11-313 (2005), as “any structure,
vehicle, watercraft, or aircraft.” S.C. Code Ann. § 16-11-310(1).
He argues that the court erred in failing to determine that his
prior conviction for “burglary-building” qualified as a violent
felony. However, his claim fails because Keys acknowledged at
sentencing, through counsel, that he burglarized a building,
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specifically, a restaurant. Because he did not challenge his armed
career criminal status, the district court did not plainly err on
this ground in accepting the recommendation in the presentence
report that Keys had the requisite predicate convictions.
With respect to the claimed Sixth Amendment error under
Booker and Shepard, because Keys failed to contest his armed career
criminal status, the district court made no findings concerning his
prior convictions. Therefore, the sentence does not violate the
Sixth Amendment under Booker or Shepard, see United States v.
Collins, 412 F.3d 515, 523 (4th Cir. 2005), and the district court
did not plainly err on this ground in imposing an armed career
criminal sentence.
Finally, under § 924(e)(1), the predicate offenses must
have been “committed on occasions different from one another
. . . .” Keys was arrested for distributing crack in Greenville,
South Carolina, on January 18, 1994. He was released on bond and
arrested again in Greenville for selling crack on February 17,
1994. (JA-I at 70, 72; JA-II at 110-11). This court has held
that, for purposes of § 924(e), “offenses occur on occasions
different from one another when each offense arose out of a
separate and distinct criminal episode.” United States v. Leeson,
453 F.3d 631, 640 (4th Cir. 2006) (internal quotation omitted).
Leeson sets out the following factors for the district court to
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consider in determining whether two prior offenses arose out of a
single criminal episode:
(1) whether the offenses arose in different geographic
locations; (2) whether the nature of each offense was
substantively different; (3) whether each offense
involved different victims; (4) whether each offense
involved different criminal objectives; and (5) after the
defendant committed the first-in-time offense, did the
defendant have the opportunity to make a conscious and
knowing decision to engage in the next-in-time offense.”
Id. (citing United States v. Letterlough, 63 F.3d 332, 335-37 (4th
Cir. 1995)).
Moreover, “if any one of the factors has a strong
presence, it can dispositively segregate an extended criminal
enterprise into a series of separate and distinct episodes.”
Leeson, 453 F.3d at 640-41. In this case, the fifth factor is
especially strong. A month elapsed between Keys’ first drug
offense and his second, giving him ample time to decide to commit
the second offense. Therefore, we conclude that the district court
did not plainly err in accepting the recommendation in the
presentence report that the offenses were distinct, and not part of
a single criminal episode.
Accordingly, we affirm the sentence imposed by the
district court. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
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