[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 25, 2006
No. 06-11854 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00107-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PETROSE DEMON HOLLAND,
a.k.a. Petrose Demond Holland,
a.k.a. Peter Demon Holland,
a.k.a. PEP,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 25, 2006)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Petrose Demon Holland appeals his 88-month
sentence for possession with intent to distribute a controlled substance, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(C), and (b)(1)(D), and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g), and 924(e), the Armed Career
Criminal Act (“ACCA”). After review, we affirm.
I. BACKGROUND
At sentencing, Holland’s presentence investigation report (“PSI”) indicated
that Holland had three prior serious drug convictions on October 12, 1998 for three
counts of “possession of a controlled substance sell/deliver” and three counts of
possession of a controlled substance and thus was an armed career criminal under
18 U.S.C. § 924(e). Under § 924(e), a defendant who violates 18 U.S.C. § 922(g)
is an armed career criminal subject to a mandatory minimum fifteen-year sentence
if he has three prior 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). The parties do not dispute that Holland’s convictions qualify as serious
drug offenses. Rather, the dispute here is whether two of his three convictions
were “committed on occasions different from one another” under § 924(e).1
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Prior to Holland’s guilty plea, the government filed a notice that Holland was subject to
enhanced penalties because of his prior convictions. In addition to the three October 12, 1998
convictions, this notice listed a fourth conviction for possession of crack cocaine on June 19, 1998.
The government abandoned reliance on the June 19, 1998 conviction after it decided that this
2
In this regard, the PSI also noted that the offense conduct of two of the three
October 12 convictions occurred on the same day, October 8, 1997, in Pensacola,
Florida. According to the PSI, Holland committed one of the October 8 offenses in
the area of Q and Moreno Street. The second October 8 offense occurred in the
area of S and Blount Street. The third October 12 conviction involved offense
conduct on October 22, 1998 and occurred in the area of Q and Blount Street.
Holland objected to the armed career criminal enhancements, arguing that
his October 12, 1998 convictions were part of a “single criminal episode” and did
not qualify as offenses “committed on occasions different from one another” under
§ 924(e). Holland did not contest the nature of his offenses, but rather whether his
offense met the different occasion requirement in § 924(e).
At sentencing and without objection, the government introduced into
evidence certified copies of Holland’s informations and arrest reports for the three
October 1998 offenses. In addition, the district court heard the testimony of Peter
Steven Bondjuk, Special Agent with the Bureau of Alcohol, Tobacco, Firearms and
Explosives. Bondjuk testified that he obtained copies of Holland’s informations,
sentences and judgement for the October 1998 convictions. Bondjuk testified that
two of the three cases occurred on October 8, 1997. Bondjuk also had spoken with
conviction did not qualify as a serious drug offense within the meaning of § 924(e)(2)(A)(ii).
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the officer who wrote the arrest reports for the October 8 offenses to confirm that
the offense conduct on Moreno and Q Street occurred at 5:02 p.m. and that the
offense conduct at Blount and S Street occurred at 5:18 p.m. on the same day. The
officer also told Bondjuk that the same confidential informant was used in both
controlled purchases and that the confidential informant reconnected with a law
enforcement officer to hand over the evidence between the two controlled
purchases. Bondjuk also stated that Q Street was approximately a block and a half
away from S Street and that street dealers usually work in a concentrated area, but
that they do not stay in one particular spot because they try to assert territorial
control. With regard to the October 22 offense, Bondjuk testified that he did not
know whether the same confidential informant was used.
Following this evidence, Holland argued that the two October 8 offenses,
which occurred within two blocks of each other and sixteen minutes apart, were
one continuous act and should be counted as one conviction for purposes of the
ACCA. The district court overruled Holland’s objection, finding that the two
October 8 offenses occurred on different occasions within the meaning of the
ACCA.
The district court adopted the PSI’s guidelines calculations, giving Holland
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an offense level of 31 2 and a criminal history category of VI, which resulted in an
advisory guidelines range of 188 to 235 months.
The district court then granted the government’s U.S.S.G. § 5K1.1 motion
for a substantial assistance departure and sentenced Holland to 88 months’
imprisonment. The district court stated that, in imposing the sentence, it had
considered the 18 U.S.C. § 3553(a) factors and also the fact that Holland “only
marginally” qualified as an armed career criminal, as follows:
I have taken into account the fact that while technically you do fall
within the Armed Career Criminal Act, certainly it’s only marginally
within it because of the technicalities we have covered.
Holland appeals his 88-month sentence.
II. DISCUSSION
On appeal, Holland argues that the district court considered impermissible
sources in determining whether his convictions occurred on different occasions for
purposes of the ACCA. Because Holland did not raise this argument in the district
court, we review only for plain error. See United States v. Rodriguez, 398 F.3d
1292, 1298 (11th Cir. 2005). Under plain error review, “[a]n appellate court may
not correct an error the defendant failed to raise in the district court unless there is:
2
The PSI recommended that, under U.S.S.G. § 4B1.4, Holland’s offense level should
increase to level 34 due to his armed career criminal status. After receiving a three-level reduction
for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, Holland’s total offense level was 31.
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‘(1) error, (2) that is plain, and (3) that affects substantial rights.’” Id. at 1298
(quoting in part United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785
(2002)). If these three conditions are met, “an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation
marks omitted). “[T]here can be no plain error where there is no precedent from
the Supreme Court or this Court directly resolving [the issue].” United States v.
Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). Here, even assuming
arguendo that there was error, it was not plain.
In 1990, the Supreme Court held that 18 U.S.C. § 924(e) mandated a formal
categorical approach when determining whether a prior conviction was a violent
felony or a serious drug offense for purposes of the ACCA. See Taylor v. United
States, 495 U.S. 575, 600-02, 110 S. Ct. 2143, 2159 (1990). Under this categorical
approach, a sentencing court was permitted to look only to the statutory elements
of the prior offenses, the charging documents and the jury instructions, but could
not look to the particular facts underlying the convictions. Id. at 602, 110 S. Ct. at
2160.
In 2000, this Court rejected the argument that the categorical approach in
Taylor prohibited a sentencing court from considering police reports and arrest
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records when determining whether a defendant’s prior convictions were committed
on different occasions under the ACCA. See United States v. Richardson, 230
F.3d 1297, 1299-1300 (11th Cir. 2000). This Court concluded that whether the
convictions were committed on different occasions was “a question unsuited to a
categorical approach that relies on an examination of the criminal statute.” Id. at
1300. Although we “recogniz[ed] the risk of converting a sentencing procedure
into a mini-trial of the facts,” we also noted that the defendant did not contest the
accuracy of the police reports and the reports revealed facts ordinarily relayed in
police reports, such as the time and date of the offense conduct. Id.
In 2005, the Supreme Court elaborated upon the categorical approach first
recognized in Taylor and concluded that the district court could not look at police
records and reports in determining whether the convictions were violent felonies or
serious drug offenses. See Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct.
1254, 1257 (2005). Importantly, Shepard did not address a district court’s inquiry
under the ACCA as to whether the prior convictions were committed on different
occasions. Furthermore, since Shepard was decided, this Court has not addressed
whether Shepard’s ban on the use of police records and reports applies to §
924(e)’s “different occasions” inquiry and thus, as Holland suggests, “nullifies”
our decision in Richardson. Because neither the Supreme Court nor this Court has
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directly resolved the question, any error in Holland’s case was not obvious or clear
under current law and thus was not plain.
Alternatively, Holland argues that, even if a court may consider arrest
reports and testimony about his two October 8, 1998 offenses, the district court
erred in concluding that his two offenses were distinct for purposes of the ACCA.3
The ACCA does not require that the predicate offenses be separated “by some
substantial amount of time.” United States v. Pope, 132 F.3d 684, 691 (11th Cir.
1998). Rather, “so long as predicate crimes are successive rather than
simultaneous, they constitute separate criminal episodes . . . .” Id. at 692. More
specifically, “the ‘successful’ completion of one crime plus a subsequent conscious
decision to commit another crime makes that second crime distinct from the first . .
. .” Id. Thus the ACCA will apply “to criminals who commit three crimes in
temporal and physical proximity to one another if the perpetrator had a meaningful
opportunity to desist his activity before committing [another] offense.” Id. at 690
(concluding that two burglaries committed on the same evening in separate
buildings 200 yards apart were sufficiently distinct under the ACCA); see also
United States v. Spears, 443 F.3d 1358, 1360 (11th Cir. 2006) (concluding that two
robberies committed within two minutes and thirty feet of each other were
3
We review de novo the legal determination that offenses were distinct under the ACCA.
United States v. Pope, 132 F.3d 684, 689 (11th Cir. 1998).
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sufficiently distinct under the ACCA).
Here, according to the PSI, which Holland did not dispute, the two
controlled drug buys on October 8 occurred at different times, separated by sixteen
minutes, and at different locations, separated by a few blocks. These temporal and
physical breaks gave Holland a “meaningful opportunity” to stop before
committing the second offense. Thus, Holland’s two October 8, 1998 drug
offenses were separate criminal episodes for purposes of the ACCA. Accordingly,
the district court did not err in sentencing Holland as an armed career criminal, and
we affirm Holland’s 88-month sentence.
AFFIRMED.
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