[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12741 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 17, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:09-cr-00190-TJC-MCR-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
BOBRA POWELL, JR.,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 17, 2011)
Before EDMONDSON, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Bobra Powell, Jr. appeals his 180-month sentence imposed after pleading
guilty to one count of possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). Powell was sentenced pursuant to the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), because he had been previously
convicted of three ACCA-qualifying offenses. Powell contends the district court
violated his Fifth and Sixth Amendment rights by judicially determining that his
prior convictions were “committed on occasions different from one another,” as
required for sentencing under the ACCA. Powell acknowledges our precedent
permits such determinations, particularly where sentencing courts limit their
inquiries to Shepard-approved1 sources, but argues, for the first time on appeal,
that the Supreme Court’s recent decision in Nijhawan v. Holder, 557 U.S. _, 129
S. Ct. 2294 (2009), abrogates those precedents. Specifically, he asserts that after
Nijhawan, circumstance-specific facts, like those required under the ACCA’s
different-occasions inquiry, may not serve as the basis for sentencing
1
Shepard v. United States, 544 U.S. 13 (2005).
2
enhancements unless they are alleged in the indictment and proven beyond a
reasonable doubt.2 After review, we affirm Powell’s sentence.3
Under § 924(e)’s different-occasions inquiry, a sentencing court must
determine whether “the perpetrator had a meaningful opportunity to desist his
activity before committing the second offense.” United States v. Pope, 132 F.3d
684, 690 (11th Cir. 1998). Because this inquiry necessarily “requires looking at
the facts underlying the prior convictions,” we initially concluded that sentencing
judges should not be limited to considering “easily produced and evaluated court
documents,” as they are in other contexts. United States v. Richardson, 230 F.3d
1297, 1300 (11th Cir. 2000).
Recently, however, we modified our holding in Richardson in light of the
Supreme Court’s decision in Shepard v. United States, 544 U.S. 13 (2005). See
United States v. Sneed, 600 F.3d 1326, 1332 (11th Cir. 2010). Shepard held for
purposes of determining whether a prior conviction qualifies as a “violent felony”
2
Powell next argues, for purposes of preservation only, the district court erred by imposing
an enhanced sentence under the ACCA because he did not admit to the existence of his predicate
offenses when he pled guilty. This argument is foreclosed by precedent. See Almendarez-Torres
v. United States, 523 U.S. 224, 226-27 (1998) (recognizing the “fact of an earlier conviction” may
be constitutionally determined by judicial fact-finding). Thus, we decline to address this issue.
3
We review properly preserved constitutional claims de novo. United States v. Paz, 405 F.3d
946, 948 (11th Cir. 2005). Powell’s claim is subject to de novo review because he objected to his
enhanced sentenced on constitutional grounds before the district court, and is now free to expand on
that position on appeal. See Yee v. Escondido, 503 U.S. 519, 534 (1992).
3
under § 924(e), a sentencing court (1) may not consider police reports or
complaint applications, but (2) may examine “the terms of the charging document,
the terms of the plea agreement or transcript of the colloquy between the judge and
defendant in which the factual basis for the plea was confirmed by the defendant,
or [] some comparable judicial record of this information.” 544 U.S. at 23-26.
Accordingly, sentencing judges must still consider the circumstances underlying a
defendant’s convictions in order to determine if the convictions occurred on
different occasions, but judges may be required to limit their inquiries to Shepard-
approved sources. Sneed, 600 F.3d at 1332 (stating that the Supreme Court “gave
us the list of Shepard-approved sources largely to address or avoid constitutional
concerns”).
In Nijhawan, the Supreme Court held that in determining whether an alien’s
prior conviction constitutes an “aggravated felony” under 8 U.S.C.
§ 1227(a)(2)(A)(iii), immigration courts may consider “the factual circumstances
surrounding commission of the crime” without limiting their inquiry to Shepard-
approved sources. Nijhawan, 557 U.S. _, 129 S. Ct. at 2298. In reaching this
conclusion, the Court noted the constitutional issues in Shepard were not relevant
to proceedings in immigration court, but acknowledged constitutional concerns
4
might arise if an aggravated-felony finding was later used to enhance a criminal
defendant’s sentence under 8 U.S.C. § 1326. See Id. at _, 129 S. Ct. at 2302-03.
Powell contends the district court constitutionally erred in performing
§ 924(e)(1)’s different-occasions inquiry, despite the fact it relied only on
Shepard-approved sources.4 Contrary to Powell’s contentions, nothing in
Nijhawan undermines the Shepard-Sneed line of cases. Nijhawan merely implied
that if immigration courts are not limited to Shepard-approved sources, their
findings may not provide a constitutional basis for sentencing enhancements.
Nijhawan did not suggest circumstance-specific determinations made for ACCA
purposes must be proven beyond a reasonable doubt. Accordingly, the district
court did not err in sentencing Powell under the ACCA.
AFFIRMED.
4
The Shepard-approved documents the Government introduced at sentencing showed
Powell’s prior offenses occurred on different days, and thus clearly established he “had a meaningful
opportunity to desist his activity before committing the [next] offense.” See Pope, 132 F.3d at 690.
5