[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 16, 2006
No. 05-13491 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00252-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ZACKERY SHANNON,
a.k.a. Yah Cooh,
a.k.a. Ontario Krum,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 16, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Zackery Shannon appeals the decision of the district court to sentence him as
a career offender based on “two prior felony convictions of either a crime of
violence or a controlled substance offense” within 15 years of the instant offense.
U.S.S.G. § 4B1.1. Although Shannon committed the prior offenses outside the 15-
year window preceding the instant offense, the convictions counted because the
sentences imposed for those convictions resulted in Shannon being incarcerated
during some part of the 15-year window. See U.S.S.G. § 4A1.2(e)(1). Shannon
admitted at sentencing that he “technically” qualified as a career offender, but now
argues that his sentence is erroneous and unconstitutional. We affirm.
I. BACKGROUND
Three offenses in Shannon’s criminal history—two prior offenses and the
instant offense—are central to this appeal. Shannon committed the first offense in
May 1986 and was sentenced to one year of probation. In August 1986, Shannon’s
probation officer filed an affidavit of violation of probation and, approximately
four-and-a-half years later, in March 1991, the government held a revocation
hearing. Shannon’s probation was revoked, and he was sentenced to 18 months of
imprisonment. Shannon was released in July 1991.
In the meantime, Shannon committed the second offense, in April 1988, and
was sentenced to 90 days of imprisonment and five years of probation. In October
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1988, Shannon’s probation was revoked and he was sentenced to 20 months of
imprisonment. Shannon was released in December 1989. Shannon committed the
instant offense in July 2004 and pleaded guilty.
The presentence investigation report recommended that Shannon be
sentenced as a career offender. The government explained at sentencing that one
reason it had agreed to recommend a sentence at the low end of the sentencing
guidelines was that Shannon “faced the uncertainty of that career offender issue.”
Shannon’s attorney stated that he was troubled by the career offender designation,
but admitted that Shannon “meets the requirements of a career offender . . .
[although in] a very technical manner.” The district court sentenced Shannon to
156 months of imprisonment and five years of supervised release. Shannon
waived “any objections to the finding of fact, conclusions of law or to the manner
in which the sentence was pronounced.”
II. STANDARD OF REVIEW
When a defendant waives an objection in the district court, we review that
objection on appeal for plain error. United States v. Rodriguez, 398 F.3d 1291,
1298 (11th Cir. 2005).
III. DISCUSSION
Shannon argues there is “no reasonable temporal nexus” between the two
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prior convictions and the instant offense and his sentence is unconstitutional. We
first discuss whether the district court correctly applied the career offender
provision of the sentencing guidelines. We next discuss whether Shannon’s
arguments have merit.
A defendant who is at least 18 years old when he commits an offense “is a
career offender if . . . the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense . . . and . . . the defendant has at
least two prior felony convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1; see United States v. Cornog, 945 F.2d
1504, 1507 (11th Cir. 1991). Prior felony convictions under section 4B1.1 are
counted using the definitions and instructions for computing criminal history in
section 4A1.2. U.S.S.G. § 4B1.2 cmt. n.3. A prior conviction is “any sentence
previously imposed upon adjudication of guilt . . . for conduct not part of the
instant offense.” U.S.S.G. § 4A1.2(a)(1). A prior conviction is counted when
“imprisonment exceeding one year and one month . . . was imposed within fifteen
years of the defendant’s commencement of the instant offense.” U.S.S.G. §
4A1.2(e)(1). A prior conviction also is counted when “any prior sentence of
imprisonment exceeding one year and one month, whenever imposed, . . . resulted
in the defendant being incarcerated during any part of such fifteen-year period.”
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Id.
Sentences imposed upon revocation of probation can “affect the time period
under which sentences are counted under [section] 4A1.2(e)(1) [of the sentencing
guidelines].” Cornog, 945 F.2d at 1510. “In the case of a prior revocation of
probation . . . [or] parole . . . [the sentencing court should] add the original term of
imprisonment to any term of imprisonment imposed upon revocation.” U.S.S.G. §
4A1.2(k)(1). “Thus, the court ordinarily should count a conviction that is imposed,
and on which the defendant is paroled, outside the window, when the defendant
later—within the window—is incarcerated for breaching the conditions of his
parole.” Cornog, 945 F.2d at 1510.
The district court correctly applied the sentencing guidelines in sentencing
Shannon as a career offender. Because Shannon committed the instant offense in
July 2004, the 15-year window for prior offenses opened in July 1989. Shannon
committed the first prior offense in May 1986 and the second prior offense in April
1988. When Shannon violated his probation for each offense, he received
sentences of more than one year and one month of imprisonment that respectively
ended July 1991 and December 1989. Because both “prior sentence[s] of
imprisonment exceed[ed] one year and one month” and “resulted in [Shannon]
being incarcerated” anytime after July 1989, the district court did not err in
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counting the prior convictions toward Shannon’s career offender status.
Shannon erroneously argues that there is “no reasonable temporal nexus”
between the two prior convictions and the instant offense. Because “reasonable”
takes its meaning directly from the relevant provisions of the sentencing
guidelines, which designate Shannon as a career offender, this argument fails.
Shannon also argues that his designation as a career offender is inconsistent with
the “spirit” of the career offender laws because counting a sentence imposed upon
revocation of probation is “tantamount to turning a probation violation into a
‘crime of violence’ or ‘controlled substance offense.’” This flawed argument
ignores both section 4A1.2(k)(1) of the sentencing guidelines and our view that “a
court ordinarily should count a conviction that is imposed, and on which the
defendant is paroled, outside the window, when the defendant later—within the
window—is incarcerated for breaching the conditions of his parole.” Cornog, 945
F.2d at 1510. Shannon’s bare assertion that counting the two prior convictions “is
not consistent with constitutional due process of law” also fails.
We recently declined to recognize an exception to counting prior convictions
where the prior convictions fell within the relevant window solely because
conviction and sentencing were delayed. See United States v. Adams, 403 F.3d
1257, 1260 (11th Cir. 2005). In Adams, the district court increased the defendant’s
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criminal history score based on a prior conviction within 10 years of the instant
offense. The defendant committed the prior offense outside the 10-year window,
but, due to a “a busy state-court docket,” was not convicted and sentenced until
seven months later. Id. at 1259. The delay caused the conviction to come within
the ten-year window. On appeal, “[w]e decline[d] [the defendant’s] invitation to
recognize an exception to the 10-year rule where, due to an alleged backlog in the
state-court system in which he was convicted, imposition of the sentence for his
prior conviction was delayed.” Id. at 1260. We reasoned that such an exception
would be contrary to the “plain and ordinary meaning” of the sentencing
guidelines. Id. As Shannon observes, the delay in sentencing in his case was
longer than in Adams, but Shannon fails to explain why the reasoning in Adams
does not apply with equal force in his case.
IV. CONCLUSION
The district court did not err, plainly or otherwise, in sentencing Shannon as
a career offender.
AFFIRMED.
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