United States v. Michel

F I L E D
United States Court of Appeals
Tenth Circuit

May 10, 2006

Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-2214

MAURICIO MICHEL,

Defendant-Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-03-127 JC)

Bernadette Sedillo of Las Cruces, New Mexico, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-
Appellee.

Before O’BRIEN, SEYMOUR, and BALDOCK, Circuit Judges.

SEYMOUR, Circuit Judge.
 Mauricio Michel brings this appeal challenging, on sufficiency of the

evidence grounds, his convictions for various gun possession and aiding and

abetting charges pursuant to 18 U.S.C. §§ 2, 922(g)(1), 924(a)(2); 26 U.S.C. §§

5841, 5845(a)(2), 5861(d), 5861(i), 5871. He also claims that his sentence should

not have been enhanced under the Armed Career Criminal Act (ACCA). 18

U.S.C. § 924(e); see also U.S.S.G. § 4B1.4. We affirm in part, reverse in part,

and remand for resentencing.

I

On December 31, 2001, an officer for the Lovington, New Mexico, police

department observed Clinton Laughrin at a convenience store putting gasoline in

a gas can. The officer, Brad Riley, watched Mr. Laughrin drive away from the

store in his two-door Pontiac, accompanied by a passenger, Mr. Michel. Mr.

Laughrin had agreed to help Mr. Michel obtain fuel for his vehicle after his car

ran out of gas. Officer Riley knew Mr. Laughrin from past traffic violations and

was aware his license had previously been suspended. The officer followed the

vehicle for approximately half a mile before pulling Mr. Laughrin over to

determine whether he was driving with a valid license. When Officer Riley

turned on his emergency lights, he observed Mr. Michel moving around in the

front seat of the car and reaching toward the back seat area. Mr. Laughrin

-2-
subsequently stopped his car under a light post, and Officer Riley illuminated the

vehicle with his own lights.

As Officer Riley approached the vehicle, Mr. Michel continued to move

around and reach toward the rear of the vehicle. When Officer Riley reached the

car, he asked Mr. Laughrin for his driver’s license, car registration, and proof of

insurance. Mr. Laughrin admitted he did not have any paperwork with him

regarding the car, but stated he had renewed his licence. A subsequent

computerized driver’s license check indicated Mr. Laughrin’s license was valid.

As Officer Riley was speaking to Mr. Laughrin, the officer used his

flashlight to see inside the vehicle. He noticed what appeared to be the barrel of

a gun behind the driver’s seat, pointed toward the driver’s side door. The gun

was easily within reach of both Mr. Laughrin and Mr. Michel. Officer Riley

immediately stepped back from the vehicle and ordered the men to place their

hands on the dashboard and not to move. He then called for the assistance of a

backup officer. Despite his directions to the men, Officer Riley observed Mr.

Michel attempt to reach behind the seat toward the area where the weapon was

located. The officer had to tell Mr. Michel several times to keep his hands on the

car’s dashboard. Officer Riley testified he did not see how close Mr. Michel got

to the shotgun, nor whether he was actually specifically reaching for the gun. The

officer also testified he did not have any knowledge as to how the gun came to be

-3-
in Mr. Laughrin’s car.

When the backup officer arrived, Mr. Laughrin and Mr. Michel were told to

exit the vehicle and were temporarily handcuffed while the officers removed the

gun. Mr. Laughrin said the gun belonged to a friend, whom he did not identify.

The gun, which neither had a serial number nor was registered with the National

Firearms Registration and Transfer Record, was a Mossberg .410 gauge shotgun

with an overall length of seventeen and a half inches and a barrel length of ten

and three eights inches. The weapon was thus a sawed off shotgun.

Neither man was arrested. After the gun was secured, one of the other

officers retrieved the gas can from Mr. Laughrin’s car and drove Mr. Michel back

to his own vehicle. Mr. Laughrin was also permitted to leave the scene. The gun

was not processed for fingerprints, but it was successfully test fired.

Over a year later, a grand jury issued a seven count indictment against Mr.

Michel and Mr. Laughrin. Mr. Michel was charged with being a felon in

possession of a Mossberg .410 gauge shotgun in violation of 18 U.S.C. §§

922(g)(1) and 924(a)(2); possessing and aiding and abetting the possession of an

unregistered firearm in violation of 26 U.S.C. §§ 5841, 5845(a)(2), 5861(d), 5871

and 18 U.S.C. § 2; and possessing and aiding and abetting the possession of a

firearm not identified by a serial number in violation of 26 U.S.C. §§ 5861(i),

-4-
5871, and 18 U.S.C. § 2. A jury found Mr. Michel guilty on all counts. 1 In

calculating his sentence, the district court classified Mr. Michel as an armed

career criminal, see 18 U.S.C. § 924(e), U.S.S.G. § 4B1.4, and gave him

concurrent sentences of 240 months on each count.

On appeal, Mr. Michel contends the evidence presented at trial was

insufficient for a jury to find him guilty beyond a reasonable doubt of the charges

against him. He also argues that the ACCA sentencing enhancement was

erroneously applied to him in violation of the Sixth Amendment. We address

each claim in turn.

1
Mr. Laughrin was also found guilty of the counts against him, which
included additional charges for being a felon in possession of two other firearms.
18 U.S.C. §§ 922(g)(1), 924(a)(2). In a separate appeal, Mr. Laughrin challenged
the district court’s denial of his motion to suppress the Mossberg shotgun found
in his car, arguing that the traffic stop was unconstitutional. This court ruled in
his favor, reversing the district court’s denial of his motion to suppress, vacating
his sentence, and remanding the case for further proceedings. United States v.
Laughrin, 438 F.3d 1245 (10th Cir. 2006). Mr. Michel neither filed a motion to
suppress in the district court nor joined Mr. Laughrin’s motion, and he did not
raise the issue on appeal prior to oral argument. Subsequent to the decision
reversing Mr. Laughrin’s conviction, Mr. Michel filed a motion seeking to
supplement the issues on appeal with the suppression issue. We deny the motion.
“A motion to suppress evidence must be raised prior to trial; the failure to so
move constitutes a waiver . . . .” United States v. Meraz-Peru, 24 F.3d 1197,
1198 (10th Cir. 1994); F ED . R. C RIM . P RO . 12(e). Although we have recognized
there may be circumstances in which we might apply the plain error rule to
suppression issues raised for the first time on appeal, see United States v. Brooks,
438 F.3d 1231, 1240 & n.4 (10th Cir. 2006); Meraz-Peru, 24 F.3d at 1198; United
States v. Dewitt, 496 F.3d 1497, 1501-02 (10th Cir. 1991), we decline to do so
here where the issue was not raised in the regular course of briefing.

-5-
 II

We review sufficiency of the evidence claims de novo. See United States v.

Higgins, 282 F.3d 1261, 1274 (10th Cir. 2002). “In doing so, we view the

evidence in the light most favorable to the government and determine whether a

reasonable jury could have found the defendant guilty of the crime beyond a

reasonable doubt.” United States v. Hamilton, 413 F.3d 1138, 1143 (10th Cir.

2005) (internal citations and quotations omitted). We do not “weigh conflicting

evidence or second-guess the fact-finding decisions of the jury,” United States v.

Summers, 414 F.3d 1287, 1293 (10th Cir. 2005), but instead must determine

whether “based on the direct and circumstantial evidence, together with the

reasonable inferences to be drawn therefrom,” the jury’s verdict was supported by

sufficient evidence. United States v. Smith, 133 F.3d 737, 742 (10th Cir. 1997).

Juries are not permitted to convict a defendant based on speculation or

mere suspicion.

While the jury may draw reasonable inferences from direct or
circumstantial evidence, an inference must be more than speculation
and conjecture to be reasonable, and caution must be taken that the
conviction not be obtained by piling inference on inference. . . . A
jury will not be allowed to engage in a degree of speculation and
conjecture that renders its finding a guess or mere possibility. Such
[an inference] is infirm because it is not based on the evidence.

United States v. Jones, 44 F.3d 860, 865 (10th Cir. 1995) (citation and quotation

marks omitted). Our prohibition against piling inference upon inference

-6-
“indicates that at some point along a rational continuum, inferences may become

so attenuated from underlying evidence as to cast doubt on the trier of fact’s

ultimate conclusion.” Summers, 414 F.3d at 1295. Certainly, reasonable

inferences supported by other reasonable inferences which have an evidentiary

basis may warrant a conviction. Nonetheless, where a conviction appears to be

based on multiple and successive inferences, we must exercise caution and

“measure the ‘gap’ between fact and conclusion before acquiescing in the jury’s

leap.” Id.

We conclude the evidence presented by the government was sufficient to

support the jury’s determination that Mr. Michel was a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Under § 922(g), it is

unlawful for any person – (1) who has been convicted in any court
of, a crime punishable by imprisonment for a term exceeding one
year . . . to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.

18 U.S.C.A. § 922(g)(1). In order to obtain a conviction against Mr. Michel

under § 922(g), the government was required to prove that he had previously been

convicted of a felony, he thereafter knowingly possessed a firearm, and such

possession was in or affected interstate commerce. See United States v. Taylor,

113 F.3d 1136, 1144 (10th Cir. 1997); United States v. Mains, 33 F.3d 1222, 1228

(10th Cir. 1994); United States v. Shunk, 881 F.2d 917, 921 (10th Cir. 1989). At

-7-
trial, Mr. Michel stipulated to the first and third elements required for a

conviction under § 922(g). We therefore focus our analysis solely on whether the

government proved he knowingly possessed a firearm. See Mains, 33 F.3d at

1228 (“the only knowledge required for a § 922(g) conviction is knowledge that

the instrument possessed is a firearm”).

For the purposes of § 922,

[t]he term “firearm” means (A) any weapon (including a starter gun)
which will or is designed to or may readily be converted to expel a
projectile by the action of an explosive; (B) the frame or receiver of
any such weapon; (C) any firearm muffler or firearm silencer; or (D)
any destructive device. Such term does not include an antique
firearm.

18 U.S.C. § 921(a)(3). Possession can either be actual or constructive. United

States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994). Constructive possession of an

object exists when a person “knowingly hold[s] the power and ability to exercise

dominion and control over it.” United States v. Lopez, 372 F.3d 1207, 1211 (10th

Cir 2004)(quotation and citation omitted). When a defendant has “‘exclusive

possession of the premises’ where the object is found,” the additional factors of

knowledge, dominion, and control can be properly inferred. United States v.

Avery, 295 F.3d 1158, 1177 (10th Cir. 2002) (quoting Mills, 29 F.3d at 549). If

two or more people occupy a given space, however, the government is required to

meet a higher burden in proving constructive possession. “In cases of joint

occupancy, where the government seeks to prove constructive possession by

-8-
circumstantial evidence, it must present evidence to show some connection or

nexus between the defendant and the firearm . . . .” Mills, 29 F.3d at 549. While

we must exercise caution to ensure that juries do not determine guilt by piling

inferences upon inferences, “an inference of constructive possession is reasonable

if the conclusion flows from logical and probabilistic reasoning.” United States

v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th Cir. 1999) (internal quotation

marks omitted). Hence, when the government seeks a conviction based on

constructive possession, it must present “evidence supporting at least a plausible

inference that the defendant had knowledge of and access to the weapon or

contraband.” Mills, 29 F.3d at 550 (citation omitted).

The evidence presented at trial indicated Mr. Michel was a joint occupant

of the area in which the shotgun was found, Mr. Laughrin’s car. In order to prove

Mr. Michel had constructive possession of the gun, the government was required

to show some sort of nexus between Mr. Michel and the gun, and that he

“knowingly held the power to exercise dominion and control over the firearm.”

United States v. Colonna, 360 F.3d 1169, 1179 (10th Cir. 2004) (citing United

States v. Gorman, 312 F.3d 1159, 1164 (10th Cir. 2002)). The government met

this burden.

At trial, there was evidence that when Officer Riley turned on his

emergency lights and signaled for Mr. Laughrin to pull to the side of the road, the

-9-
officer observed Mr. Michel moving back and forth and reaching into the back

seat area of the car. Officer Riley subsequently saw the gun in this same area.

Mr. Michel continued this movement as Officer Riley approached Mr. Laughrin’s

side of the vehicle. Even after the officer saw the weapon and directed the men to

put their hands on the dashboard, Mr. Michel continued to make movements

toward the area where the gun was located. From this evidence, the jury could

make the rational inference that Mr. Michel’s several attempts to reach into the

back seat of Mr. Laughrin’s vehicle were for the purpose of moving and hiding

the gun so it would be out of Officer Riley’s sight, thus establishing his

knowledge of the existence of the firearm and his exercise of dominion and

control over it.

We cannot say the same for Mr. Michel’s convictions for being in

possession of an unregistered firearm and a firearm lacking a serial number. See

26 U.S.C. §§ 5861(d), (i). According to the statute, “[i]t shall be unlawful for any

person . . . (d) to receive or possess a firearm which is not registered to him in the

National Firearms Registration and Transfer Record; or . . . (i) to receive or

possess a firearm which is not identified by a serial number as required by this

chapter . . . .” 26 U.S.C. §§ 5861(d), (i). For the purposes of § 5861, a firearm is

more narrowly described as

(1) a shotgun having a barrel or barrels of less than 18 inches in length; (2)
a weapon made from a shotgun if such weapon as modified has an overall

-10-
 length of less than 26 inches or a barrel or barrels of less than 18 inches in
length; (3) a rifle having a barrel or barrels of less than 16 inches in length;
(4) a weapon made from a rifle if such weapon as modified has an overall
length of less than 26 inches or a barrel or barrels of less than 16 inches in
length . . . .

26 U.S.C. § 5845(a). In other words, a firearm meeting the definition of a sawed-

off shotgun must be registered and identified by a serial number.

In order for the jury to convict Mr. Michel of possession of an unregistered

firearm, the government was required to present sufficient evidence that Mr.

Michel knowingly possessed the type of firearm specifically described in 26

U.S.C. § 5845(a), i.e., that he knew the firearm had a barrel length of less than

eighteen inches. Staples v. United States, 511 U.S. 600, 612, 619 (1994)

(government required to prove defendant’s knowledge of weapon’s characteristics

that brought it within scope of firearms registration statute). See also United

States v. Serrano, 406 F.3d 1208, 1212 (10th Cir. 2005) (setting out elements for

§ 5861(d) conviction); United States v. Sanders, 240 F.3d 1279, 1281 (10th Cir.

2001) (government required to prove defendant’s knowledge of weapon’s

characteristics); United States v. Edwards, 90 F.3d 199, 203 (7th Cir. 1996)

(same); Mains, 33 F.3d at 1229 (same). Although the government was required to

prove Mr. Michel knew the gun was a sawed-off shotgun, it was not required to

further prove he knew it was supposed to be registered or that it lacked a serial

number. See United States v. Freed, 401 U.S. 601, 607 (1971) (defendant not

-11-
required to know weapon is unregistered); cf. United States v. Ruiz, 253 F.3d 634,

637-39 (11th Cir. 2001) (government required to prove defendant knew he

possessed a silencer; thereafter, fact that silencer has no serial number brings it

within scope of act). Thus, as Supreme Court and circuit court case law indicates,

while the government was not required to establish that Mr. Michel knew the gun

was unregistered or lacked a serial number, Freed, 401 U.S. at 607; Ruiz, 253

F.3d at 637; United States v. Walsh, 791 F.2d 811, 820 (10th Cir. 1986); United

States v. Ranney, 524 F.2d 830, 832 (7th Cir. 1975), the government was required

to prove beyond a reasonable doubt that Mr. Michel knew the firearm in his

possession had a barrel shorter than eighteen inches.

There is no question that the gun found in Mr. Laughrin’s car satisfied the

criteria of a sawed-off shotgun as set out in § 5845(a), that it was not registered

with the National Firearms Registration and Transfer Record, that it lacked a

serial number, and that it was operable. Likewise, there was sufficient evidence

to show that Mr. Michel had constructive possession of the gun in Mr. Laughrin’s

car. Nevertheless, we are not persuaded the government carried its burden of

presenting evidence beyond a reasonable doubt that Mr. Michel knew the shotgun

had a barrel shorter than eighteen inches.

In closing arguments, and in speculating how the gun might have arrived in

the back seat of Mr. Laughrin’s car, the prosecutor figuratively placed himself

-12-
in the passenger seat.

I’m sitting down . . . I’m the defendant, Mr. Michel. I have a
shotgun in my hand. Whoop, the [police] lights go on, the cops are
coming. What am I going to do with it? Throw it out the window?
Am I going to reach and set it into the back seat, barrel pointing
towards the door, which is where Officer Riley saw it?
....

We don’t know where [the gun] came from. Maybe when Mr.
Michel’s car broke down, and when Mr. Laughrin picked him up,
maybe he had it. He’s not going to leave it in the car. [“]I’ll bring it
in your car; let’s go get gas.[”] Ooops, the lights come on. What do
you do with it? You don’t leave it sitting there when you’re holding
it; you try to hide it or it’s already there and you try to go for it.

Rec., vol. VIII at 44-46. The prosecutor also stated

[t]he weapon was made from a shotgun. We had the measurements.
We knew the characteristics of it. It’s a sawed-off shotgun. It
doesn’t take a rocket scientist to look at that and say it’s a sawed-off
shotgun. Anybody would know that. [Mr. Michel] would know that
and [he] did know that.

Id. at 12-13. The government further postulated that Mr. Michel saw the gun.

. . . [I]t wasn’t dark when [Mr. Michel and Mr. Laughrin] first got
together. If he was getting in the car and he didn’t know anything
about [the gun] and he reached in the back seat, do you think he can
see that sitting on the floorboard? I suggest to you that you’d see
that. Oh, gee, a sawed-off shotgun.
. . . . Isn’t it reasonable to think that when you got in, you would see
that? I submit to you that you would.

Id. at 47.

Of course, “evidence a defendant observed and handled [a] ‘sawed-off

shotgun’ is sufficient for a jury reasonably to infer that the defendant knew that

-13-
the weapon was shorter than twenty-six inches overall or had a barrel length of

less than eighteen inches.” United States v. Jones, 222 F.3d 349, 352 (7th Cir.

2000); see also United States v. Gergen, 172 F.3d 719, 725 (9th Cir. 1999)

(fingerprint evidence indicating defendant handled weapon could allow jury to

make reasonable inference that defendant was aware of gun’s characteristics);

United States v. Jackson, 124 F.3d 607, 613-14 (4th Cir. 1997) (evidence shotgun

was in defendant’s possession before and after its barrel length was altered was

sufficient for jury to conclude defendant knew of gun’s characteristics); United

States v. Moore, 97 F.3d 561, 564 (D.C. Cir. 1996) (jury could conclude

defendant was aware weapon was sawed-off shotgun where evidence included

defendant’s admission he had handled weapon prior to shortening of the gun’s

barrel, testimony that after the gun’s alteration defendant instructed others in his

home to move gun for safety reasons, and evidence of defendant’s observation of

weapon with shortened barrel); Mains, 33 F.3d at 1230 (defendant’s involvement

in sawing off shotgun was evidence he knew gun’s characteristics). Here,

however, the government presented absolutely no evidence that Mr. Michel ever

observed or handled the gun. Rather, the evidence indicated that it was getting

dark when Mr. Laughrin and Mr. Michel were first seen together at the gas

station, so dark in fact that when Officer Riley stopped the men soon thereafter he

had to use his flashlight to see into the vehicle. Officer Riley testified he was not

-14-
able to see if Mr. Michel was able to actually reach the weapon, and no efforts

were made to determine if Mr. Michel’s fingerprints were on the gun.

The government’s hypotheticals suggesting that perhaps Mr. Michel was

sitting in the front seat of Mr. Laughrin’s car holding the sawed-off shotgun in his

lap, or saw the gun in the back seat when he was getting into Mr. Laughrin’s car,

are just that – hypotheticals. While the government’s scenarios may not be

unreasonable, the inferences required to support them are not undergirded by

sufficient evidence to establish them beyond a reasonable doubt. The government

did not ask the jury to begin with facts that could support rational inferences.

Instead the government asked the jury to begin with inferences to support other

inferences. The government began with the inference that Mr. Michel saw and/or

handled the gun to lead the jury to the subsequent inference that Mr. Michel had

knowledge of the gun’s characteristics. To allow such an inferential leap to

support a conviction would permit the jury to convict Mr. Michel based on “a

degree of speculation and conjecture that renders its finding a guess or mere

possibility. Such [an inference] is infirm because it is not based on the evidence.”

Jones, 44 F.3d at 865 (citation and quotation omitted).

The evidence presented to the jury established that Mr. Michel was in a car

in which a gun was found and that Mr. Michel was seen reaching toward the area

where the gun was located. The evidence also indicated that Mr. Michel

-15-
continued to reach toward that area despite directions to the contrary by Officer

Riley. From this evidence, a jury could make the reasonable inference that Mr.

Michel knew there was a gun in the car and that he was able to exercise dominion

and control over it. However, this evidence was far from sufficient to permit the

jury to conclude beyond a reasonable doubt that Mr. Michel also knew the gun’s

barrel had been shortened. We therefore reverse Mr. Michel’s convictions for

possession of an unregistered sawed-off firearm, see 28 U.S.C. § 5861(d), and for

possession of the same firearm without a serial number, id. § 5861(i).

III

Mr. Michel also challenges the district court’s enhancement of his sentence

under the Armed Career Criminal Act (ACCA), contending it violated his Sixth

Amendment rights. Pursuant to that statute, and as relevant here, a sentencing

court is required to impose a sentence of not less than fifteen years upon a

defendant who is found guilty of violating 18 U.S.C. § 922(g) and who has “three

previous convictions . . . for a violent felony . . . committed on occasions

different from one another.” 18 U.S.C. § 924(e)(1). 2 Mr. Michel does not contest

the existence of his three prior violent felony convictions. Rather, he claims that

2
Absent the ACCA enhancement, Mr. Michel’s maximum sentence for
being a felon in possession under 18 U.S.C. § 922(g)(1) would have been ten
years. See 18 U.S.C. § 924(a)(2).

-16-
pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, 3

whether his prior convictions were committed “on occasions different from one

another,” 18 U.S.C. § 924(e)(1), is a factual question that must be determined by

a jury beyond a reasonable doubt, not by the sentencing court. Reviewing this

claim de novo, United States v. Scull, 321 F.3d 1270, 1281 (10th Cir. 2003), we

reject Mr. Michel’s argument.

We are guided by our decision in United States v. Moore, 401 F.3d 1220

(10th Cir. 2005). There we examined whether the ACCA’s provision that a

defendant’s sentence be enhanced if the defendant had previously been convicted

of a “violent felony,” 18 U.S.C. § 924(e)(1), ran afoul of the rule in Apprendi that

“[o]ther than the fact of a prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” Id. at 490 (emphasis added). We

concluded in Moore that whether the defendant had previously been convicted of

a violent felony fell within Apprendi’s prior conviction exception. Moore, 401

F.3d at 1224-26.

3
Prior to sentencing, Mr. Michel challenged the application of the ACCA
on the basis that any determination that his prior violent felonies “occurred on
occasions different from one another,” 18 U.S.C. § 924(e)(1), was a fact other
than that of a prior conviction and thus had to be found by a jury beyond a
reasonable doubt pursuant to United States v. Blakely, 542 U.S. 296 (2004), and
Apprendi. On appeal, he notes the Supreme Court’s extension of Blakely to
federal sentencing in United States v. Booker, 125 S. Ct. 738 (2005).

-17-
 Our conclusion in Moore was influenced by cases from the Second, Sixth

and Seventh Circuits which rejected arguments postulating that the question of

whether prior convictions were committed on occasions different from one

another had to be charged in an indictment and proved to a jury. See United

States v. Burgin, 388 F.3d 177, 186 (6th Cir. 2004); United States v. Morris, 293

F.3d 1010, 1012-13 (7th Cir. 2002); United States v. Santiago, 268 F.3d 151, 156-

57 (2d Cir. 2001). The courts reasoned that Apprendi left to the judge,

the task of finding not only the mere fact of previous convictions but
other related issues as well. Judges frequently must make factual
determinations for sentencing, so it is hardly anomalous to require
that they also determine the “who, what, when, and where” of a prior
conviction. . . . [W]e are satisfied . . . that § 924(e)’s “different
occasions” requirement falls safely within the range of facts
traditionally found by judges at sentencing and is sufficiently
interwoven with the facts of the prior crimes that Apprendi does not
require different fact-finders and different burdens of proof for
Section 924(e)’s various requirements.

Santiago, 268 F.3d at 156-57; see also Burgin, 388 F.3d at 184-86; Morris, 293

F.3d at 1013.

Since we decided Moore, another circuit has concluded that the

determination of whether prior convictions “occurred on occasions different from

one another” 18 U.S.C. § 924(e)(1), need not be made by a jury to result in an

enhanced sentence that passes constitutional muster. In United States v.

Thompson, 421 F.3d 278 (4th Cir. 2005), the Fourth Circuit held that whether a

series of burglaries were separate episodes was a factual issue “inherent in the

-18-
convictions themselves, and thus . . . not among the kind of facts extraneous to a

conviction that Blakely . . . requires a jury to find.” Id. at 286. We agree and

hold that whether prior convictions happened on different occasions from one

another is not a fact required to be determined by a jury but is instead a matter for

the sentencing court. 4

Our initial conclusion regarding Mr. Michel’s sentencing argument,

however, does not entirely dispose of his challenge to the enhancement of his

sentence under the ACCA. We must still address whether the district court erred

in actually finding that Mr. Michel’s three prior felony convictions occurred on

different occasions. We review de novo the district court’s application and

interpretation of the ACCA. United States v. Tisdale, 921 F.2d 1095, 1098 (10th

Cir. 1990).

In October of 1996 and prior to the offense at issue in this case, Mr. Michel

pled guilty in New Mexico state court to two counts of aggravated assault on a

police officer and one count of attempted robbery. In concluding that Mr.

Michel’s sentence should be enhanced under the ACCA, the district detailed the

4
As we did in United States v. Moore, 401 F.3d. 1220, 1224 (10th Cir.
2005), we give short shrift to Mr. Michel’s argument that the prior conviction
exception laid out in Apprendi, which found its genesis in Almendarez-Torres v.
United States, 523 U.S. 244 (1998), is in decline. Unless and until the Supreme
Court determines otherwise, we will continue to follow the rule laid out in
Almendarez-Torres.

-19-
following facts surrounding Mr. Michel’s prior convictions. 5

On April 13, 1996, Mr. Michel was stopped by the police for a minor traffic

violation. When the officer approached his car and spoke with him, Mr. Michel

pulled out a gun, pointed it at the officer, and then fled the scene in his car. The

officer gave chase but lost Mr. Michel for a short period of time. Mr. Michel

subsequently drove to a convenience store, ran in, grabbed the cashier by the

neck, and demanded she give him all her money. When she did not immediately

comply, he drew his gun and put it to her chest, again demanding that she give

him all her money. Despite the cashier’s protests that she did not have any

money, Mr. Michel tried to open the cash register.

At this point, the police officer who had initially stopped Mr. Michel,

accompanied now by backup, observed Mr. Michel’s car in the convenience store

parking lot. The officers entered the lot and exited their vehicles. Mr. Michel

fled the store, got into his car, and drove off. One of the officers gave chase. A

second officer who was in the vicinity and heard on his radio that Mr. Michel had

drawn a gun on an officer, started driving toward the convenience store to see if

he could assist. As he approached the store, Mr. Michel’s car came out of an

alley and headed toward his vehicle. Mr. Michel crossed the center line of the

5
Mr. Michel does not challenge the accuracy of the facts relied upon by the
district court. Rather, he claims that his three convictions should, as a matter of
law, be treated as one event under 18 U.S.C. § 924(e)(1).

-20-
street and hit the officer head on.

As a result of these events, Mr. Michel was charged with and pled guilty to

aggravated assault for pulling a gun on the first officer, attempted robbery, and

aggravated assault for driving into the second officer. In the instant action, the

government claimed that the three violent felony convictions occurred on

different occasions from one another and therefore warranted application of the

ACCA. Despite Mr. Michel’s legal objections, the district court agreed with the

government and sentenced Mr. Michel accordingly.

In affirming the district court, we are governed by our ruling in Tisdale.

There, we held a defendant can receive an enhanced sentence under the ACCA

where his prior convictions “arise from separate criminal transactions.” Tisdale,

921 F.2d at 1098 (citing United States v. Bolton, 905 F.2d 319, 323 (10th Cir.

1990)); see also United States v. Johnson, 130 F.3d 1420, 1430 (10th Cir. 1997)

(enhancement under ACCA meant to apply to “multiple criminal episodes distinct

in time”). In Tisdale, the government sought to enhance a defendant’s sentence

under the ACCA, by relying on three burglary convictions which occurred on the

same date. “The defendant broke into a shopping mall and burglarized two

private businesses and a post office located inside the shopping mall.” Tisdale,

921 F.2d at 1098. The district court concluded these events happened

successively and the ACCA applied. Id. On appeal, we rejected the defendant’s

-21-
argument that the three burglaries should be treated as one criminal episode

because the events happened on the same night and at the same general location.

We reasoned the separate offenses were “distinct in time,” and that after the

defendant had successfully burglarized one business, he was free to leave the mall

and cease his criminal activity. Id. at 1098-99. The defendant instead made the

choice to engage in additional criminal episodes, which in the aggregate included

breaking and entering into three separate structures. Based on these facts, we

held the trial court properly enhanced the defendant’s sentence under § 924(e)(1).

Mr. Michel’s criminal episodes are even more distinct than those in

Tisdale. Mr. Michel committed three successive criminal incidents at three

separate locations against three different victims. While these events all occurred

within a short period of time, Mr. Michel had the opportunity after assaulting the

first officer simply to flee the scene rather than attempting to rob the convenience

store and assaulting the second officer. His choice to do otherwise is “evidence

of his intent to engage in . . . separate criminal episode[s].” Tisdale, 921 F.2d at

1099; see also, e.g., Johnson, 130 F.3d at 1430-31 (ACCA enhancement

appropriate where defendant engaged in three different drug transactions over

three separate days); United States v. Hudspeth, 42 F.3d 1015, 1020-21 (7th Cir.

1994) (same where defendant robbed three separate businesses in strip mall);

United States v. Brady, 988 F.2d 664, 668-69 (6th Cir. 1993) (same for defendant

-22-
who engaged in two armed robberies against different victims in different

locations); United States v. Washington, 898 F.2d 439, 441-42 (5th Cir. 1990)

(same where two separate robberies happened at different times, even though

against same victim at same location); United States v. Schieman, 894 F.2d 909,

913 (7th Cir. 1990) (same for completed robbery of cake store followed by assault

of police officer). We find no error in the district court’s application of the

ACCA to Mr. Michel.

IV

Finally, Mr. Michel contends the ACCA is unconstitutionally vague

because it is difficult to predict when certain criminal actions will be deemed to

have been “committed on occasions different from one another.” 18 U.S.C. §

924(e)(1). Therefore, he maintains, we should apply the rule of lenity to his case.

We review this issue de novo, United States v. Wynne, 993 F.2d 760, 764 (10th

Cir. 1993), and rule against Mr. Michel.

The void-for-vagueness doctrine provides that a penal statute must “define

the criminal offense with sufficient definiteness that ordinary people can

understand what conduct is prohibited and in a manner that does not encourage

arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352,

357 (1983). Hence, “a potential defendant must have some notice or fair warning

-23-
that the conduct contemplated is forbidden by the criminal law.” United States v.

Protex Indus., Inc., 874 F.2d 740, 743 (10th Cir. 1989) (quotation omitted).

Where a vagueness challenge does not implicate First Amendment freedoms, our

review is limited to the “application of the statute to the particular conduct

charged.” United States v. Reed, 114 F.3d 1067, 1070 (10th Cir. 1997). If a

statute is ambiguous, the rule of lenity indicates that courts should interpret it in

favor of the defendant. United States v. Onheiber, 173 F.3d 1254, 1256 (10th Cir.

1999). “The rule of lenity, however, applies only in cases where there is a

‘grievous ambiguity or uncertainty in the language and structure’ of a provision.”

Id. (quotation and citations omitted).

Mr. Michel contends the ACCA’s language mandating an enhanced

sentence when a defendant has three violent felony convictions “committed on

occasions different from one another,” 18 U.S.C. § 924(e)(1), is

unconstitutionally vague as applied to him. He argues there is no precise test

among the circuit courts to determine whether crimes have been committed on

occasions different from one another, resulting in inconsistent outcomes in the

interpretation of § 924(e)(1). Consequently, he did not have fair warning that his

conduct could subject him to an increased penalty. We disagree.

In reviewing enhancements under § 924(e)(1), courts have characteristically

ruled that “offenses were committed on occasions different from one another if

-24-
they arose out of separate and distinct criminal episodes.” United States v.

Jackson, 113 F.3d 249, 253 (D.C. Cir. 1997) (quotations and citations omitted);

see also, e.g., United States v. McElyea, 158 F.3d 1016, 1020-21 (9th Cir. 1998);

Johnson, 130 F.3d at 1431; United States v. Graves, 60 F.3d 1183, 1185-86 (6th

Cir. 1995); Hudspeth, 42 F.3d at 1019; Brady, 988 F.3d at 668-69; Tisdale, 921

F.2d at 1098-99; Washington, 898 F.2d at 441. Courts’ determinations as to when

crimes have arisen out of separate and distinct criminal episodes, of course, have

varied based on the different facts presented. Compare United States v. Murphy,

107 F.3d 1199, 1210 (6th Cir. 1997) (crimes did not occur on occasions different

from one another, because there was “no principled way of distinguishing

between the end of the first burglary and the beginning of the second”) with

Brady, 988 F.2d at 669 (crimes occurred on occasions different from one another

where defendant “committed crimes against different victims at different places

and at distinctly different times”). As relevant to Mr. Michel, however, courts

have been quite consistent in holding that crimes occurring at separate times, at

separate locations, and against separate victims constitute offenses committed on

occasions different from one another. See, e.g., Brady, 988 F.2d at 669;

Hudspeth, 42 F.3d at 1021; Tisdale, 921 F.2d at 1099; Schieman, 894 F.2d at 913.

Mr. Michel assaulted a police officer, attempted to rob a convenience store clerk,

and then assaulted a second officer. While all of these events happened within a

-25-
close time frame, they nonetheless were different crimes, perpetrated at different

times, in separate locations, and against separate victims.

We do not discount that there may be instances in which determining

whether a series of crimes fits within § 924(e)(1) is not immediately revealed by

the statute and requires a highly fact bound inquiry. In evaluating whether 18

U.S.C. § 924(e)(1) is vague, however,

we must take into account the “‘limitations in the English language
with respect to being both specific and manageably brief’” and not
deem void for vagueness those laws which are “‘set out in terms that
the ordinary person exercising ordinary common sense can
sufficiently understand and comply with, without sacrifice to the
public interest.’”

United States v. Solomon, 95 F.3d 33, 35 (10th Cir. 1996) (citing Broadrick v.

Oklahoma, 413 U.S. 601, 608 (1973) (quoting United States Civil Serv. Comm’n

v. National Ass’n of Letter Carriers, AFL-CIO, 413 U.S. 548, 578-79 (1973))).

That different courts might draw subtle distinctions as to what constitutes crimes

occurring on occasions different from one another does not necessarily render the

statute vague for constitutional purposes. United States v. Graham, 305 F.3d

1094, 1105 (10th Cir. 2002).

The ACCA dictates an enhanced sentence for defendants who have

committed three prior violent felonies occurring on occasions different from one

another. 18 U.S.C. § 924(e)(1). This language is sufficiently definite to let a

person of ordinary intelligence, such as Mr. Michel, know that if he committed

-26-
three separate crimes on the same day against separate victims at separate

locations, his sentence would be enhanced under the ACCA. The statute is not

vague as applied to Mr. Michel and the rule of lenity is therefore not triggered.

V

In light of the foregoing, we AFFIRM Mr. Michel’s conviction under 18

U.S.C. § 922(g)(1) but we REVERSE his convictions under 28 U.S.C. §§ 5861(d)

and (i) and REMAND to the district court to vacate Mr. Michel’s sentence and to

resentence him in accordance with this opinion.

-27-