United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 19, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 05-31048
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LANE B. WHITE,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:
Lane White challenges his sentence for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He
argues on appeal that his criminal record did not qualify him for
a sentence enhancement under 18 U.S.C. § 924(e), and that the
district court’s application of the sentence enhancement violated
his Sixth Amendment rights. Because White’s two prior drug
offenses were not a single criminal transaction, and such a finding
was properly made by the district court without the utilization of
a jury, we AFFIRM.
I. Background
White pleaded guilty to the possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). In
connection with this guilty plea, White entered into a signed
factual stipulation in which he admitted that he had possessed a
.22 caliber pistol during an altercation with his wife.
The revised PSR in White’s case recommended a base
offense level of 20. Based upon an enhancement for being an “armed
career criminal” under 18 U.S.C. § 924(e), White’s offense level
was adjusted to 33. White received a three-level reduction for
acceptance of responsibility, and his criminal history was set at
Category IV. The recommended Guideline range for White’s offense
was 135-168 months imprisonment, but because White was found to be
an “armed career criminal,” the applicable Guideline range was
superseded by the statutory minimum of 180 months under 18 U.S.C.
§ 924(e)(1).
White filed written objections to the PSR, arguing that
he was not subject to the “armed career criminal” enhancement, as
his two prior drug convictions should be considered a single
offense. White also argued that the district court could not make
any findings regarding his prior convictions without violating his
Sixth Amendment rights. At White’s sentencing hearing, the
district court overruled these objections and sentenced White to
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180 months imprisonment, plus three years of supervised release.
White then brought this timely appeal.
II. Discussion
A. Multiple Criminal Transactions
This court reviews the district court’s interpretation
and application of the Sentencing Guidelines de novo. United
States v. Montgomery, 402 F.3d 482, 485 (5th Cir. 2005).
The Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), imposes a mandatory fifteen-year sentence on a felon who
has been convicted of the unlawful possession of a firearm, and who
has three previous convictions for a “violent felony” or a “serious
drug offense.” In the instant case, White’s sentence was enhanced
due to three prior convictions: a 1988 conviction for aggravated
battery, and two 1989 convictions for distribution of marijuana and
distribution of cocaine. White does not suggest that his crimes
were not “violent felonies” or “serious drug offenses” for the
purposes of § 924(e). Instead, he argues that his two prior drug
convictions should be treated as a single “serious drug offense”
for the purposes of § 924(e).
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Relying on the assertions of counsel,1 White claims that
on March 12, 1988, a confidential informant approached him and
requested to purchase cocaine and marijuana. White immediately
supplied the informant with marijuana, but did not have cocaine on
his person at time. Thus, he arranged to sell cocaine to the
informant five days later, and he returned on March 17 to complete
the cocaine transaction. White’s two offenses were charged
separately, but tried together.
It is well established in this circuit that “[m]ultiple
convictions arising from the same judicial proceeding but separate
criminal transactions constitute multiple convictions for purposes
of § 924(e).” United States v. Ressler, 54 F.3d 257, 259 (5th Cir.
1995). Thus, the fact that White’s drug charges were tried
together is irrelevant to the determination of whether his actions
constituted two criminal transactions. Ultimately, “[t]he critical
inquiry when deciding whether separate offenses occurred on
‘occasions different from one another’ for purposes of ACCA is
whether the offenses occurred sequentially.” United States v.
Fuller, 453 F.3d 274, 278 (5th Cir. 2006)(citing Ressler, 54 F.3d
1
As the Government correctly notes, White offered no evidence
indicating that his drug offenses were conducted in the manner he describes,
infra. Rather, in a sentencing memorandum and during White’s sentencing hearing,
his counsel asserted the underlying “facts” of White’s drug convictions. Such
assertions by counsel are not evidence; White did not present evidence to rebut
the PSR, which established two separate criminal transactions. See United States
v. Quertermous, 946 F.2d 375, 378 (5th Cir. 1991). Even assuming arguendo that
White’s version of events is accurate, however, the district court did not err
in holding that his drug crimes constituted separate “serious drug offenses” for
the purposes of § 924(e).
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at 260). This court has long held that crimes that are “distinct
in time” are properly treated as separate criminal transactions for
the purposes of § 924(e). See, e.g., United States v. Barr, 130
F.3d 711, 712 (5th Cir. 1997)(two drug sales to same buyer
separated by a day counted as two criminal transactions); Ressler,
54 F.3d at 260 (burglary and later stabbing of pursuer
approximately ten minutes later were two criminal transactions);
United States v. Washington, 898 F.2d 439, 442 (5th Cir. 1990)(two
robberies committed against same victim hours apart were two
criminal transactions).
White acknowledges this precedent, but he urges the
distinction that he allegedly agreed to sell cocaine to an
informant at the same time he in fact sold marijuana. He thus
argues that his subsequent delivery of cocaine was part of a single
transaction. This argument must be rejected; Ressler and United
States v. Cardenas, 217 F.3d 491 (7th Cir. 2000), a Seventh Circuit
case whose facts are nearly identical to this case, are
instructive. In Ressler, the defendant argued that because he
stabbed his victim in the course of fleeing the scene of his
earlier crime, his two crimes were part of the same transaction.
However, the court noted that Ressler was “free to cease and desist
from further criminal activity” after fleeing the scene of his
crime, yet he made the independent decision to attack a good
Samaritan who attempted to detain him. Ressler, 54 F.3d at 260.
Similarly, in Cardenas, the defendant sold crack cocaine to
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informants, agreed to sell more if the buyers were satisfied with
their first purchase, and returned forty-five minutes later to
complete a second sale; because the first sale was not contingent
upon the second, and the defendant “had plenty of time to change
his mind, to cease and desist, and to refuse to sell to the
informants,” the court determined that Cardenas had partaken in two
criminal transactions. Cardenas, 217 F.3d at 492. In the instant
case, long after he completed his sale of marijuana, White
committed the new offense of selling cocaine. White had five days
to decide against selling cocaine, but he elected to commit an
additional crime. As White’s conviction for the sale of cocaine
was distinct in time from his conviction for the sale of marijuana,
the district court did not err in holding that White had committed
two “serious drug offenses” for the purposes of § 924(e).
B. Sixth Amendment Claims
White also argues, based upon Shepard v. United States,
544 U.S. 13, 125 S. Ct. 1254 (2005), and its antecedents, that his
Sixth Amendment rights were violated when the district court
enhanced his sentence based upon facts neither admitted by him nor
submitted to a jury. The application of the Sixth Amendment to
§ 924(e) is a question of law that we review de novo. United
States v. Stone, 306 F.3d 241, 243 (5th Cir. 2002).
As this court held in Stone, “‘because [Section]
924(e)(1) does not create a separate offense but is merely a
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sentence enhancement provision,’ neither the statute nor the
Constitution requires a jury finding on the existence of the three
previous felony convictions required for the enhancement.” Id. at
243 (quoting and reaffirming United States v. Affleck, 861 F.2d 97,
98-99 (5th Cir. 1988) in light of Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000)). Stone remains good law, and Shepard
is not to the contrary. As the Fourth Circuit held in United
States v. Thompson, 421 F.3d 278 (4th Cir. 2005), “[t]he data
necessary to determine the ‘separateness’ of [a defendant’s crimes]
is [sic] inherent in the fact of prior convictions,” and do not
have to be put before a jury. Id. at 285.
White did not object to the accuracy of the facts in the
PSR; in fact, through his counsel at his sentencing hearing, he
admitted that he had sold drugs on March 12 and March 17, 1988, as
part of his argument that he only committed a single “serious drug
offense,” supra. This court has recently held that “the district
court can use all facts admitted by the defendant” in ascertaining
the basis of a prior conviction for enhancement purposes. United
States v. Mendoza-Sanchez, 456 F.3d 479, 483 (5th Cir. 2006).
Moreover, in addition to the PSR and White’s admissions, the
Government also provided the court with Shepard-approved court
documents, including the charging instruments used against White.
White did not object to them. Thus, the court had ample bases to
determine that White’s drug offenses were separate; it did not run
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afoul of Shepard in finding that White qualified for a sentence
enhancement.
III. Conclusion
For the foregoing reasons, White’s sentence is AFFIRMED.
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