United States v. Jeremy Robinson ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2396
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United States of America
Plaintiff - Appellee
v.
Jeremy Dale Robinson
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas
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Submitted: April 15, 2022
Filed: August 9, 2022
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Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Jeremy Dale Robinson pled guilty to unlawfully possessing a firearm as a
felon. He appeals the district court’s1 conclusion that his prior Arkansas
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The Honorable P.K. Holmes, III, United States District Judge for the Western
District of Arkansas.
burglary convictions were separate offenses, rendering him an armed career criminal
subject to an enhanced sentence. We affirm the judgment of the district court.
I. Background
Robinson pled guilty to unlawfully possessing a firearm as a felon in violation
of 18 U.S.C. §§ 922(g), 924(c) and (e). Following Robinson’s guilty plea, the
district court concluded Robinson had at least three residential burglary convictions
that constituted violent felony convictions under the Armed Career Criminal Act
(“ACCA”). See Ark. Code. Ann. § 5-39-201; 18 U.S.C. § 924(e)(1). The district
court accordingly concluded Robinson was an armed career criminal and imposed
the mandatory minimum 15-year term of imprisonment. See 18 U.S.C. § 924(e)(1).
Robinson committed the first qualifying burglary on June 14, 2011. In that
offense, Robinson broke into the victim’s home, stole the victim’s revolver and some
other items, and, when confronted by the victim, Robinson pointed the revolver at
him before fleeing. Robinson committed the second burglary fifteen days later on
June 29, 2011. In that offense, Robinson broke into the victim’s home by kicking
open her door and then stole several items. Robinson committed the third burglary
on July 5, 2011. In that offense, after the victim caught Robinson and an accomplice
in the act of burglarizing her home, Robinson or the accomplice grabbed the victim’s
purse off her arm and fled with some of the victim’s property. Robinson committed
each of these burglaries against separate victims in separate homes and stole
different kinds of property. Robinson was arrested on the same date for the first two
burglaries, and then arrested on a different date for the third burglary. On May 25,
2012, Robinson was convicted of each burglary and sentenced in state court to three
terms of ten years of imprisonment, to run concurrently.
II. Analysis
On appeal, Robinson contends his first two Arkansas burglary convictions are
not separate predicate felonies under the ACCA because they occurred during a
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single criminal episode. “We review de novo whether a prior conviction qualifies
as a predicate offense” under the ACCA. United States v. Mattox, 27 F.4th 668, 677
(8th Cir. 2022).
The ACCA mandates a 15-year minimum sentence for a defendant who has
been convicted of unlawfully possessing a firearm as a felon following “three
previous convictions by any court . . . for a violent felony . . . committed on
occasions different from one another[.]” 18 U.S.C. § 924(e)(1) (emphasis added).
For prior convictions to qualify as predicate offenses committed on occasions
different from one another under the ACCA, “each conviction must be a separate
and distinct criminal episode, rather than part of a continuous course of conduct.”
United States v. Humphrey, 759 F.3d 909, 911 (8th Cir. 2014) (quoting United States
v. Deroo, 304 F.3d 824, 828 (8th Cir. 2002)). In determining whether prior
convictions are separate and distinct, at least three factors are relevant: “(1) the time
lapse between offenses, (2) the physical distance between their occurrence, and (3)
their lack of overall substantive continuity, a factor that is often demonstrated in the
violent-felony context by different victims or different aggressions.” United States
v. Pledge, 821 F.3d 1035, 1038 (8th Cir. 2016) (quoting United States v.
Willoughby, 653 F.3d 738, 742–43 (8th Cir. 2011)).
In applying these factors, we have consistently held violent felonies
committed at different times, different locations, or against different victims may
qualify as separate qualifying convictions under the ACCA, even if the offenses
were committed within a short period of time of each other. See, e.g., Pledge, 821
F.3d at 1038 (holding three burglaries committed on the same day were separate
predicate offenses under the ACCA because the burglaries were committed in
different locations against different victims); United States v. Daniels, 625 F.3d 529,
533–34 (8th Cir. 2010) (holding three burglaries committed over a one-year period
on different dates and locations and against different victims qualified as separate
violent felonies under the ACCA despite the fact the defendant was arrested on the
same day for two of the burglaries). Here, Robinson committed three residential
burglaries—each on different days, in different locations, and against different
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victims—over an approximate three-week span. We hold these offenses qualify as
separate and distinct criminal episodes committed on occasions different from one
another.
Though Robinson was arrested on the same date for two of his qualifying
burglary convictions and later sentenced on the same date for all three, we reject his
argument that the district court should have treated any combination of these
burglary offenses as a single offense under the ACCA. Robinson correctly concedes
this argument is foreclosed by our precedent. The sentence enhancement under the
ACCA does not require the predicate felonies be separated by arrest or conviction,
but rather that the offenses be committed on occasions different from one
another. See, e.g., Willoughby, 653 F.3d at 742–43.
We note the Supreme Court recently decided Wooden v. United States, 142
S. Ct. 1063 (2022), which Robinson suggests might change our analysis. It does not.
In Wooden, the Supreme Court held ten prior burglary convictions did not qualify as
separate predicate offenses for purposes of the ACCA because the defendant had
burglarized ten storage units on the same night, in the same location, and in a single
uninterrupted course of conduct. Id. at 1071. The Supreme Court explained each
burglary was part of the same scheme and accomplished by the same means, and
each burglary was essentially identical and intertwined with the others, as the
defendant moved in a row from one unit to the next. Id. Here, rather than
committing numerous burglaries on a single day, at one location, in one continuous
course of conduct, Robinson committed three different burglaries on separate and
nonconsecutive days, at separate locations, arising from isolated conduct.
Robinson’s case is thus distinguishable from Wooden.
Lastly, Robinson argues the ACCA sentence enhancement in this case violates
the Sixth Amendment because the enhancement requirement that the offenses be
“committed on occasions different from one another” was not charged in the
indictment and decided by a jury or admitted in a guilty plea, but rather was decided
by the district judge at sentencing. Robinson correctly concedes this argument is
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foreclosed by our precedent. See United States v. Harris, 794 F.3d 885, 887 (8th
Cir. 2019) (explaining “recidivism is not an element that must be admitted or proved
to a jury”); United States v. Evans, 738 F.3d 935, 936 (8th Cir. 2014) (“[T]he
question of whether prior felonies were committed on separate occasions may be
resolved by a judge.” (quoting United States v. Ramsey, 498 F. App’x 653, 654 (8th
Cir. 2013))). Further, precedent forecloses Robinson’s argument that the district
court here violated the Sixth Amendment when considering the non-elemental
underlying facts of his burglaries, such as the dates on which the burglaries occurred,
to establish he had committed three or more predicate felonies on occasions different
from one another under the ACCA. In determining the specific dates on which an
offense occurred for an ACCA sentence enhancement, a sentencing court does not
violate the Sixth Amendment when it considers information outlining the underlying
facts of an offense, such as those outlined in a presentence investigation report, in
addition to the elements of the offenses of conviction. See, e.g., Evans, 738 F.3d at
936–37.
III. Conclusion
For the foregoing reasons, we affirm Robinson’s sentence and the judgment
of the district court.
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