[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 16, 2005
No. 05-12248
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00314-CR-T-24MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARIAN ANTWAN WATTS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 16, 2005)
Before MARCUS, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Darian Antwan Watts was indicted for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e). The indictment
listed his prior convictions for purposes of § 924(e) and the Armed Career
Criminal (“ACCA”) provision, U.S.S.G. § 4B1.4, as two robbery convictions and
convictions for possession of cocaine and carrying a concealed weapon.
The testimony at trial established that Watts was waving a gun in the air
during a block party in River Front Park. Police ordered Watts to drop the weapon,
but Watts ran. Police gave chase, during which the gun fell on the ground. After
the police caught Watts and read him his rights, Watts stated that he bought the gun
for protection and that he knew it was illegal for him to possess it.
Watts stipulated that he had a prior felony conviction, and, therefore, the
government did not introduce evidence of his prior convictions at trial. At the
close of the government’s case and again at the close of all the evidence, Watts
moved for judgment of acquittal, asserting, inter alia, that the three prior
convictions required for application of § 924(e) and the ACCA had not been
proven to the jury under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004). The court denied the motion, finding that Blakely did not
apply to prior convictions. The jury convicted Watts.
The probation officer prepared a presentence investigation report (“PSI”),
assigning a base offense level of 24 under U.S.S.G. § 2K2.1(a)(2). The probation
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officer noted the following prior convictions: On May 23, 1995, Watts was
convicted of robbery, attempted robbery, possession of cocaine, and carrying a
concealed weapon. With a two-level increase under § 2K2.1(b)(4), the adjusted
offense level was 26, but that level was increased to 33 under U.S.S.G. § 4B1.4(a)
because Watts was a career criminal. The probation officer then calculated Watts’s
criminal history at level VI, which resulted in an advisory guideline range of 235 to
293 months imprisonment. Under § 924(e), however, there was a mandatory
minimum sentence of 15 years imprisonment.
Watts objected to his criminal history, asserting that at least one of the
convictions should not have been counted because he did not have assistance of
counsel. He also reiterated his objection to the application of § 924(e) and the
ACCA because the jury had not found that he had three prior felony convictions
that occurred on three separate occasions.
At sentencing, which occurred after the U.S. Supreme Court’s decision in
United States v. Booker, 543 U.S. –, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the
district court sustained part of Watts’s objection to his criminal history points and
reduced his criminal history category to V, which resulted in an advisory guideline
range of 210 to 262 months imprisonment. Addressing Watts’s Booker (formerly
Blakely) challenge, the court noted that the issue was not proven to the jury
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because Watts had stipulated to his prior conviction for purposes of § 922(g).
Although Watts requested a jury trial on his prior convictions, the court found that
Booker did not require the prior convictions be proven to a jury, even after the U.S.
Supreme Court’s decision in Shepard v. United States, 544 U.S. –, 125 S.Ct. 1254,
– L.Ed.2d – (2005). The court then reviewed the criminal informations and
judgments and convictions from Watts’s prior offenses.1 The court noted that
Watts had been convicted of three offenses on May 23, 1995. Although convicted
on the same day, Watts committed the offenses on different days. In case number
95-103, Watts was convicted of robbery that occurred on November 30, 1994.
Watts also had been convicted in case number 94-16767 of four counts of robbery
and one count of attempted robbery, as well as possession of marijuana, which
occurred on December 5, 1994. Finally, in case number 94-02148, Watts had been
convicted of possession of cocaine and carrying a concealed weapon, which
occurred on February 16, 1994.
Based on these prior convictions, the court determined that Watts had three
qualifying offenses under § 924(e) and the ACCA. The court considered the
advisory guidelines and the mandatory minimum sentence and found that a
sentence of 210 months imprisonment met the goals of 18 U.S.C. § 3553(a) for
1
Watts objected that the court could not look behind the offense of conviction to the facts
of the charges to determine if it was a violent felony under the ACCA.
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punishment, protection, and deterrence.
On appeal, Watts argues that any enhancement based on his prior
convictions had to be proven to a jury beyond a reasonable doubt in light of
Booker and Shepard. He also challenges whether his prior conviction for carrying
a concealed weapon qualified as a predicate offense, although he concedes that this
court has rejected his argument. Finally, he contends that the court failed to make
the requisite finding that the offenses occurred on three separate occasions.
Because Watts preserved his Booker challenge in the district court, we
review the sentences de novo but will reverse only if the error was not harmless.
United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). Purely legal questions
also are reviewed de novo. United States v. Camacho-Ibarguen, 410 F.3d 1307,
1311 (11th Cir.), cert. denied, – S.Ct. – (2005). “Whether two crimes constitute a
single criminal episode or two separate felonies for purposes of section 924(e) is an
issue of law, which [this court] review[s] de novo.” United States v. Miles, 290
F.3d 1341, 1346 (11th Cir. 2002).
A defendant is subject to enhanced penalties under § 924(e) and the ACCA
if he “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.” 18 U.S.C. § 924(e)(1) (emphasis added); U.S.S.G.
5
§ 4B1.4, comment. (n.1).
Watts’s arguments have no merit. First, this court has rejected Watts’s claim
that prior convictions must be proven to a jury, and this holding is not altered by
Shepard. United States v. Glover, No. 04-16745, manuscript op. at 8-9 (11 th Cir.
Nov. 29, 2005); Camacho-Ibarguen, 410 F.3d at 1311; United States v. Orduno-
Mireles, 405 F.3d 960, 962-63 (11th Cir.), cert. denied, 126 S.Ct. 223 (2005).
Second, there is no Sixth Amendment violation when the court determines
whether a prior conviction is a qualifying offense.2 Glover, manuscript op. at 9
(discussing “crime of violence” under U.S.S.G. § 4B1.2); United States v.
Gallegos-Aguero, 409 F.3d 1274, 1276-77 (11th Cir. 2005) (discussing qualifying
offenses under U.S.S.G. § 2L1.2(b)(1)(A)(vii)).
Third, Watts’s prior conviction for carrying a concealed weapon is a
qualifying offense. United States v. Hall, 77 F.3d 398, 401 (11th Cir. 1996).
Finally, although the district court did not make an explicit finding that the
offenses occurred on three separate occasions, this error was harmless and does not
require reversal. At sentencing, the court reviewed the information from each
2
Although Watts preserved his objection to the court’s factual findings that his offenses
were predicate offenses, Watts did not object to the facts of his prior convictions. Because he did
not object to these findings, they are deemed admitted. United States v. Burge, 407 F.3d 1183, 1191
(11th Cir.), cert. denied, 126 F.3d 551 (2005).
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offense and listed the dates on which the offenses occurred even though the
offenses were adjudicated and sentenced on the same day.3
Here, the court properly reviewed the charging documents to determine that
the offenses occurred on three separate occasions as required by the statute.
According to the informations, Watts committed his prior offenses on February 16,
November 30, and December 5, 1994. The fact that he was adjudicated guilty and
sentenced for all three on the same day does not alter the fact that he committed the
offenses on separate occasions.4 Therefore, as the plain language of the statute
requires, Watts’s prior convictions occurred on “occasions different from one
another” and, therefore, were qualifying offenses. See 18 U.S.C. § 924(e)(1).
Thus, even if the court erred by not explicitly finding that the offenses occurred on
3
Although Watts contends that the court’s review of the information and judgment and
conviction was improper, his argument is misplaced. As this court explained “[w]hen a court
considers the application of a sentencing enhancement it should generally follow a ‘categorical
approach’ and ‘consider only the fact of conviction and the statutory definition of the prior
offense.’” United States v. Burge, 407 F.3d 1183, 1187 (11th Cir.), cert. denied, 126 F.3d 551
(2005). However, “the district court ‘may look behind the judgment of conviction when it is
impossible to determine from the face of the judgment or statute whether the prior crime satisfies
the enhancement statute.’” Id. In such cases, the district court’s review “is limited to the terms of
the charging document, the terms of a plea agreement or transcript of colloquy between judge and
defendant . . . or to some comparable judicial record of this information.” Id. (citing Shepard, 125
S.Ct. at 1263).
4
See, e.g., United States v. Hernandez-Martinez, 382 F.3d 1304 (11th Cir. 2004) (holding
that prior sentences were not consolidated and, therefore, not related under U.S.S.G. § 4A1.2 where
the offenses occurred on different days and involved different victims, were docketed separately and
received separate judgments even though they were sentenced before the same judge on the same
day).
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different occasions, the error was harmless, and we AFFIRM.
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