United States Court of Appeals
For the Eighth Circuit
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No. 15-2856
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Charles Michael Pledge
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Dubuque
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Submitted: April 11, 2016
Filed: May 4, 2016
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Before RILEY, Chief Judge, WOLLMAN and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
Charles Pledge pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court1 enhanced his sentence under
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based on his four prior
1
The Honorable Linda R. Reade, Chief United States District Judge for the
Northern District of Iowa.
convictions for aggravated burglary. Although Pledge was subject to a 180 month
statutory minimum sentence, the court granted the government's motion for a
downward departure and sentenced him to 135 months imprisonment. Pledge
appeals, arguing that three of his convictions for aggravated burglary were not
"committed on occasions different from one another." 18 U.S.C. § 924(e)(1). We
affirm.
Pledge pled guilty to possessing a firearm as a convicted felon. The
presentence report concluded that Pledge qualified as an armed career criminal
because he had four prior Tennessee convictions for aggravated burglary in violation
of Tenn. Code Ann. § 39-14-403. All four convictions were charged in the same
indictment. According to the indictment, Pledge committed the first burglary on
March 29, 2001. The other three burglaries were committed on March 30, 2001 when
Pledge stole items valued at over five hundred dollars from three individuals'
residences. The indictment does not indicate the time of the burglaries or the
addresses of the residences burglarized.
At sentencing the government introduced the arrest warrants, affidavits of
complaint, written guilty pleas, and judgments as evidence of Pledge's four prior
burglary convictions. The affidavits of complaint listed the addresses of the three
March 30 burglaries. Each burglary was committed at a separate location. Pledge
relied on the affidavits of complaint when he argued that the three burglaries should
not be considered separate convictions under the ACCA because they "occurred on
the same date (March 30, 2001), within hours of each other, and all within 12 miles
of each other in rural areas near Humboldt, Tennessee." Pledge also introduced a
map of the locations of the burglaries as evidence during the sentencing hearing. The
district court determined that all four burglaries were committed on separate
occasions and concluded that Pledge qualified as an armed career criminal. The court
sentenced him to 135 months imprisonment after granting the government's motion
for a downward departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).
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The ACCA imposes a mandatory minimum fifteen year sentence if a defendant
has been convicted as a felon in possession of a firearm "and has three previous
convictions by any court . . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another." 18 U.S.C. § 924(e)(1). A
violent felony is defined as including "any crime punishable by imprisonment for a
term exceeding one year . . . that . . . (ii) is burglary, arson, or extortion, [or] involves
use of explosives." Id. § 924(e)(2)(B). A conviction qualifies as a "burglary" under
the ACCA if it "includes the elements of 'generic burglary,'" that is "unlawful or
unprivileged entry into, or remaining in, a building or structure, with intent to commit
a crime." United States v. Eason, 643 F.3d 622, 623 (8th Cir. 2011) (quoting Taylor
v. United States, 495 U.S. 575, 598–99 (1990)). A burglary under Tenn. Code Ann.
§ 39-14-403 qualifies as a generic burglary offense and is categorically a violent
felony. See id. at 624–25; see also United States v. Priddy, 808 F.3d 676, 684 (6th
Cir. 2015).
Pledge argues that the district court improperly considered the affidavits of
complaint when determining that the burglaries on March 30 were committed on
separate occasions. Since Pledge did "not raise this issue in the district court, we
review for plain error." United States v. Jones, 574 F.3d 546, 549 (8th Cir. 2009).
When reviewing for plain error, "we reverse only if there has been (1) an error, (2)
that is plain, and (3) that affects substantial rights." United States v. Richardson, 537
F.3d 951, 959 (8th Cir. 2008). We need not address the first factor of this test,
whether admitting the affidavits of complaint was an error, because we conclude that
if there was an error it was not plain.
When analyzing whether a prior conviction qualifies as a predicate offense,
courts are permitted only to review "the charging document, jury instructions, plea
agreement or plea hearing transcript, and comparable judicial records." See United
States v. Salean, 583 F.3d 1059, 1061 (8th Cir. 2009). Neither the Supreme Court nor
our court has addressed whether affidavits of complaint qualify as "comparable
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judicial records," and other circuit courts are divided on this issue. Compare United
States v. Jones, 453 F.3d 777, 780 (6th Cir. 2006) (concluding that a district court
may consider affidavits of complaint), with United States v. Rosa, 507 F.3d 142,
154–56 (2d Cir. 2007) (rejecting Jones and concluding that a defendant must have
"pleaded guilty to, or otherwise admitted the allegations contained in the" document
for it to be properly considered at sentencing). Since neither our court nor the
Supreme Court has addressed whether a sentencing court may consider affidavits of
complaint and other circuit courts are split, the district court did not plainly err in
considering the documents. See Richardson, 537 F.3d at 960.
Pledge further argues that the district court erred in concluding that the three
burglaries on March 30 were "committed on occasions different from one another."
See 18 U.S.C. § 924(e)(1). Since Pledge preserved this issue below, we review it de
novo. See United States v. Willoughby, 653 F.3d 738, 741 (8th Cir. 2011). Prior
convictions must be separate and distinct criminal episodes "[t]o qualify as predicate
offenses under the statute." Id. (quoting United States v. Deroo, 304 F.3d 824, 828
(8th Cir. 2002)) (alteration in Willoughby). There are at least three factors to
consider when determining whether prior convictions are separate and distinct: "(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." Id. at
742–43. The first factor is the most important consideration. United States v. Abbott,
794 F.3d 896, 898 (8th Cir. 2015).
Our court has concluded that a defendant's convictions for burglarizing two
different residences were separate and distinct under the ACCA even though the
homes "were located very close to each other" and the burglaries took place within
a twenty five minute span. United States v. Gray, 85 F.3d 380, 380–81 (8th
Cir.1996). Here, Pledge burglarized three different residences that were within
twelve miles of each other on the same day. Pledge's three burglaries on March 30
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were thus committed on separate occasions because they involved "different victims
and [were] committed in different locations." See Deroo, 304 F.3d at 828.
On this record we conclude that Pledge's three aggravated burglary convictions
are separate predicate offenses under the ACCA and that the district court correctly
determined that Pledge thus qualifies as an armed career criminal. Accordingly, we
affirm the judgment of the district court.
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