United States v. Brown , 306 F. App'x 941 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0029n.06
Filed: January 15, 2009
No. 06-5907
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
JUDUNE BROWN, )
)
Defendant-Appellant.
BEFORE: NORRIS, BATCHELDER, ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Defendant Judune Brown challenges the 188-month prison
sentence imposed on him following his guilty plea on the charge of being a felon in possession of
a firearm. Brown argues that the district court erred in classifying him as a Armed Career Criminal
during sentencing. Because this argument is without merit, we affirm the sentence imposed by the
district court.
On April 2, 2004, Brown attempted to rob the Liberty Super Market in Memphis, Tennessee.
One employee prevented Brown from entering the market’s office area, while another employee
confronted Brown. Brown struggled with the second employee, struck the employee over the eye
with a handgun, and then fled from the store. Police officers and the market owner pursued Brown,
and a witness reported seeing Brown fire multiple shots during the pursuit. Brown then attempted
No. 06-5907
United States v. Brown
to escape in a car, but was apprehended after he wrecked the car. Officers found a handgun on the
driver’s seat in the wrecked car.
After his arrest, police discovered that Brown was a convicted felon. As a result, he was
indicted in the United States District Court for the Western District of Tennessee on one count of
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Brown pled guilty to this
charge on February 10, 2006.
The Presentence Report (“PSR”) prepared for Brown’s sentencing hearing determined that
he should be assigned an offense level of 34 under the Sentencing Guidelines. This level was based
on Brown’s classification as an Armed Career Criminal under 18 U.S.C. § 924(e) and Brown’s use
of his gun in connection with a crime of violence. U.S.S.G. § 4b1.4(b)(3)(A). The PSR listed three
prior aggravated robbery convictions as the predicate offenses for Brown’s Armed Career Criminal
classification. The district court accepted this classification and the corresponding offense level of
34. The court subtracted three levels based on Brown’s acceptance of responsibility.
The court’s calculations produced a final offense level of 31, which, with Brown’s criminal
history category of VI, resulted in a Guidelines sentencing range of 188 to 235 months in prison.
The district court addressed the relevant sentencing factors under 18 U.S.C. § 3553(a) and concluded
that Brown should serve a term of 188 months in prison, to be followed by three years of supervised
release.
Brown’s sole argument on appeal is that the district court erred in classifying him as an
Armed Career Criminal. Brown argues that this classification was inappropriate because his three
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No. 06-5907
United States v. Brown
predicate offenses “were the result of a single arrest, a single court hearing, and all the sentences
imposed ran concurrently.” Because these facts are not relevant to Brown’s classification under the
Armed Career Criminal Act (“ACCA”), the district court’s classification and resulting sentence were
proper.
The district court properly classified Brown as an Armed Career Criminal under 18 U.S.C.
§ 924(e)(1). The statute provides:
In the case of a person who violates section 922(g) of this title and has three previous
convictions . . . for a violent felony or a serious drug offense, or both, committed on
occasions different from one another, such person shall be fined under this title and
imprisoned not less than fifteen years, and, notwithstanding any other provision of
law, the court shall not suspend the sentence of, or grant a probationary sentence to,
such person with respect to the conviction under section 922(g).
§ 924(e)(1). This court reviews de novo the district court’s legal determination that Brown’s
offenses were “committed on occasions different from one another.” United States v. Hill, 440 F.3d
292, 295 (6th Cir. 2006). While in some cases this determination involves a detailed analysis of the
distinct nature of a series of uninterrupted offenses, see, e.g., United States v. Murphy, 107 F.3d 1199
(6th Cir. 1997), this is not one of those cases. Brown has three prior convictions for aggravated
robbery involving three different victims on three different days in October and November of 1996.
The district court correctly treated these convictions as separate episodes when classifying Brown
as an Armed Career Offender.
In his brief, Brown concedes this fundamental point: “[t]he defendant concedes that under
this Court’s case law regarding whether convictions qualify as separate occasions, the three
convictions . . . qualify as three separate crimes.” Instead, Brown argues that classifying him as an
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No. 06-5907
United States v. Brown
Armed Career Criminal “does not advance Congress’ intent to punish recidivist offenders under the
ACCA” because “the predicate offenses of the defendant were the result of a single arrest, a single
court proceeding, and resulted in concurrent sentences.” On several occasions, this court has
explicitly rejected the argument that these facts make classification under § 924(e)(1) improper. See
United States v. Anderson, 76 F.3d 685, 691 (6th Cir. 1996) (“[D]efendant’s receipt of concurrent
sentences for these three prior felony drug convictions does not mean that the convictions were part
of the same criminal episode.”); United States v. Roach, 958 F.2d 679, 683 (6th Cir. 1992) (finding
Armed Career Criminal status appropriate even though “all of the convictions occurred on the same
date and stemmed from the same indictment”); United States v. White, No. 05-6737, 2007 WL
1217960, at *3 (6th Cir. April 25, 2007) (holding these same facts irrelevant to the ACCA
classification); James v. United States, 217 F. App’x 431, 441 (6th Cir. 2007); United States v.
Perkins, 242 F. App’x 338, 342-43 (6th Cir. 2007). Therefore, the district court appropriately
rejected this argument and classified Brown as an Armed Career Criminal under § 924(e)(1).
For these reasons, we AFFIRM Brown’s sentence.
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