[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 99-4240
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D. C. Docket No. 98-00117-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFRED WAYNE LEE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 13, 2000)
Before COX, Circuit Judge, HILL, Senior Circuit Judge, and NESBITT*, Senior
District Judge.
PER CURIAM:
*
Honorable Lenore C. Nesbitt, Senior U. S. District Judge for the
Southern District of Florida, sitting by designation.
Alfred W. Lee, Sr. was caught pawning a shotgun, and he was convicted for
possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Lee
appeals, challenging among other rulings the district court’s conclusion that he had
been convicted of three violent felonies, and thus was subject to the armed-career-
criminal mandatory minimum sentence of 18 U.S.C. § 924(e), the Armed Career
Criminal Act.1 We affirm.
Two of the three predicate convictions, one for strong-arm robbery and the
other for burglary, resulted from conduct occurring on the same day in 1993. On that
day, Lee first robbed a credit union at gunpoint. Having collected $300, he made a
successful getaway in a Dodge Omni. An officer responding at the scene immediately
issued a bulletin with a description of Lee and the Omni. Within a few minutes,
another officer in a nearby jurisdiction spotted the Omni, now rolling with a flat tire,
about two miles from the credit union. The officer stopped the car, but Lee fled on
foot. Officers surrounded the area and finally caught Lee as he exited a backyard
storage shed where he had broken in and hidden.
The district court concluded, on these facts, that there was enough of a break
between the robbery and the burglary for the two to be “committed on occasions
1
Lee’s other challenges to his conviction and sentence do not warrant
discussion. See 11th Cir. R. 36-1.
2
different from one another” as required by 18 U.S.C. § 924(e)(1) to treat them as
separate felonies, and the court accordingly sentenced Lee as an armed career criminal
to 210 months’ incarceration. Lee’s contention on appeal, as it was in the district
court, is that the robbery and the burglary were a single criminal episode, and thus do
not count as two separate felonies for these purposes. This is an issue of law, which
we review de novo. See United States v. Pope, 132 F.3d 684, 689 (11th Cir. 1998).
Two cases from this circuit come very close to interpreting § 924(e) on similar
facts. In the first, United States v. Sweeting, 933 F.3d 962, 967 (11th Cir. 1991), the
defendant burglarized one house and then, as the police approached, broke into
another house to hide. In the second case, United States v. Pope, 132 F.3d 684, 692
(11th Cir. 1998), the defendant committed two burglaries two hundred yards apart on
the same night. The Sweeting panel held that the two burglaries were committed on
the same “occasion” under the statute, and thus counted as one felony; the Pope panel
reached the opposite conclusion on its facts. Lee would have us read the two cases
either as conflicting (in which case the older case would control this panel’s decision2)
or to view his facts as closer to Sweeting than Pope.
We reject both of these contentions. The rule stated in Pope comports with the
result in Sweeting, which was reached without extended discussion. Pope held that
2
See Walker v. Mortham, 158 F.3d 1177, 1188-89 (11th Cir. 1998).
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“so long as predicate crimes are successive rather than simultaneous, they constitute
separate criminal episodes for purposes of the ACCA.” Pope, 132 F.3d at 692. By
“successive,” the Pope panel meant that the crimes were separated by “a meaningful
opportunity to desist . . . activity before committing the second offense,” id. at 690,
and that the crimes reflected “distinct aggressions, especially if the defendant
committed the crimes in different places,” id. at 692.
The Sweeting and Pope panels’ different conclusions simply reflect the panels’
judgment on the degree of break between the first and second crimes. The Sweeting
court evidently concluded (its recitation of the facts of the predicate crimes is not
detailed enough to tell for sure) that Sweeting, being under the pressure of hot pursuit
after the commission of his first crime, had no meaningful opportunity to avoid his
second crime, which was part of the same aggressive conduct, and in the same area,
as his first burglary. In Pope, on the other hand, the panel observed that Pope had
time to stop his criminal activity rather than undertake a second crime. See id. at 692.
This case comes closer to Pope than Sweeting because of the significant
separation between the credit union robbery and the shed burglary. It is true that the
crimes represent one course of criminal conduct, but so did the burglaries in Pope.
The more important point is that as in Pope, Lee here successfully completed his first
crime. He got away. Only after he was spotted some two miles away based on a
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description of his car did he set into motion the chain of events leading to his second
crime, and that crime was committed in a completely different venue. That break
makes the crimes successive, distinct aggressions. The district court thus properly
sentenced Lee under § 924(e).
AFFIRMED.
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