[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 13, 2006
No. 05-14262 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20614-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVONNE WILKS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 13, 2006)
Before DUBINA, CARNES and HULL, Circuit Judges.
CARNES, Circuit Judge:
Javonne Wilks appeals his 212-month sentence for possession with the
intent to distribute 35 grams or more of crack cocaine and possession of a firearm
by a convicted felon. Wilks’ main contention is that the failure of the career
offender guideline, U.S.S.G. § 4B1.1, and the Armed Career Criminal Act, 18
U.S.C. § 924(e)(1), to distinguish between youthful offender and adult convictions
is improper because it conflicts with the reasoning of Roper v. Simmons, 543 U.S.
551, 125 S. Ct. 1183 (2005) (holding that the Eighth Amendment prohibits
execution of individuals under the age of eighteen at the time the capital offense is
committed). He also contends that the district court erred in counting his youthful
offender convictions as predicate offenses in applying the § 4B1.1 and § 924(e)(1)
enhancements. Finally, he contends that the enhancements resulted in an
unreasonable sentence under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005).
I.
We review de novo the district court’s application and interpretation of the
sentencing guidelines, United States v. Norris, 452 F.3d 1275, 1280 (11th Cir.
2006), and we review factual findings for clear error, United States v. Pinion, 4
F.3d 941, 943 (11th Cir. 1993).
We held in Pinion, 4 F.3d at 944–45, that prior youthful offender
convictions under state law may be used as predicate offenses to classify an adult
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defendant as a career offender under § 4B1.1 if the defendant’s youthful offense
resulted in an adult conviction and a sentence of more than one year and one
month. To determine whether a defendant was convicted as an adult, we look to
“the nature of the proceedings, the sentences received, and the actual time served.”
Id. at 944. We concluded in Pinion that because the defendant was convicted in an
adult court, was sentenced to indeterminate sentences “not to exceed six years,”
and actually served twenty-seven months, his classification as a youthful offender
under state law did not prevent his convictions from counting as predicate offenses
in determining career offender status under § 4B1.1. Id. at 944–45. In United
States v. Spears, 443 F.3d 1358, 1360–61 (11th Cir. 2006), we held that a
defendant’s robbery conviction, for a crime committed when he was seventeen
years old, counted towards ACCA enhancement because he was prosecuted as an
adult and the offense was punishable by a term of imprisonment exceeding one
year.
On May 12, 1997, a Florida circuit court twice convicted Wilks as a youthful
offender. The first case involved an aggravated assault on a police officer
occurring on July 31, 1996. The court found Wilks guilty of that offense and
sentenced him to sixteen months imprisonment. The second case involved three
separate incidents occurring on August 15, 1996 including grand theft, burglary
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with assault, and strongarm robbery. The court found Wilks guilty of those
offenses as well and sentenced him to a term of sixteen months imprisonment.
The Florida circuit court that sentenced Wilks is an adult court. Wilks’ treatment
as a youthful offender under Florida law limited the maximum term of
imprisonment and the type of facility in which he was incarcerated. However, he
was otherwise treated as an adult criminal, and he was sentenced to term of
imprisonment exceeding one year and one month.
The § 4B1.1 and ACCA enhancements are proper and the outcome of this
case is controlled by Pinion and Spears unless we agree with Wilks’ contention
that those cases have been overruled by the Supreme Court’s decision in Roper.
They have not. An intervening Supreme Court decision overrules one of our
decisions only if it is directly on point. United States v. Blankenship, 382 F.3d
1110, 1141 (11th Cir. 2004), cert. denied, 126 S. Ct. 42 (2005). Wilks’ argument
that the reasoning in Roper prohibits counting youthful offender convictions to
enhance the sentence of an adult offender is meritless. To begin with, we decided
Spears after the Roper decision was rendered, so Roper cannot logically be said to
overrule that decision. Not only that, but Roper held only that the Eighth
Amendment prohibits sentencing capital offenders to death if the offender was
under the age of eighteen at the time of the offense.
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Our conclusion that youthful offender convictions can qualify as predicate
offenses for sentence enhancement purposes remains valid because Roper does not
deal specifically—or even tangentially—with sentence enhancement. It is one
thing to prohibit capital punishment for those under the age of eighteen, but an
entirely different thing to prohibit consideration of prior youthful offenses when
sentencing criminals who continue their illegal activity into adulthood. Roper does
not mandate that we wipe clean the records of every criminal on his or her
eighteenth birthday.
II.
Wilks’ second contention is that the district court erred in counting his
youthful offender convictions separately for enhancement purposes because the
convictions were consolidated for sentencing. Wilks relies on United States v.
Delvecchio, 920 F.2d 810, 812–13 (11th Cir. 1991), and Florida law for the
proposition that when a defendant is sentenced simultaneously for different
offenses, his sentences are related and cannot be assessed separately under the
guidelines.
We review for clear error a factual finding that prior convictions are
unrelated under § 4A1.2, United States v. Mullens, 65 F.3d 1560, 1565 (11th Cir.
1995), but we review de novo a district court’s determination of whether two
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crimes constitute two separate felonies for purposes of 18 U.S.C. § 924(e). Spears,
443 F.3d at 1360.
In calculating a criminal history score under § 4A1.2(a)(2), prior sentences
imposed for related convictions should be counted as one sentence, but unrelated
cases are counted separately. The commentary to that guidelines provision
provides: “Prior sentences are not considered related if they were for offenses that
were separated by an intervening arrest (i.e., the defendant is arrested for the first
offense prior to committing the second offense). Otherwise, prior sentences are
considered related if they resulted from offenses that (A) occurred on the same
occasion, (B) were part of a single common scheme or plan, or (C) were
consolidated for trial or sentencing.” § 4A1.2 cmt. n.3 (2004). We have
explained: “The language of Note 3 is clear. In determining whether cases are
related, the first question is always whether the underlying offenses are separated
by an intervening arrest. This inquiry is preliminary to any consideration of
consolidated sentencing, as reflected by use of the word ‘otherwise.’” United
States v. Hunter, 323 F.3d 1314, 1322–23 (11th Cir. 2003).
The district court did not clearly err when it counted Wilks’ youthful
offender convictions separately in applying the § 4B1.1 career offender
enhancement because his prior convictions are unrelated under § 4A1.2. See §
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U.S.S.G. § 4B1.2(c) (2004) (cross-referencing § 4A1.1 for determining whether
felony convictions are counted separately under § 4B1.1). Although consolidated
for sentencing on the same day, Wilks’ first conviction was for a charge of
aggravated assault on a law enforcement officer stemming from an arrest on July
31, 1996. Wilks’ second conviction stemmed from an arrest on August 15, 1996
for three separate crimes—grand theft, burglary with assault and strongarm
robbery. Sixteen days separated the arrests for these two convictions. Because an
intervening arrest separated the underlying predicate offenses, the district court did
not err in counting them separately and enhancing Wilks’ sentence under § 4B1.1.
As for the ACCA enhancement, the language of § 924(e)(1) requires only
that the prior felonies or offenses be “committed on occasions different from one
another,” not that the convictions be obtained on separate occasions. 18 U.S.C.A.
§ 924(e)(1); United States v. Jackson, 57 F.3d 1012, 1018 (11th Cir. 1995). It does
not matter for § 924(e) purposes that the legal consequences of a defendant’s
separate criminal acts were imposed upon him on the same day. Id. Nor does it
matter that the legal consequences were sentences to be served concurrently instead
of consecutively. Id. In Jackson, we held that a defendant was an armed career
criminal where he pleaded guilty to five counts of robbery on one day and was
given concurrent sentences, because the five counts were based on five separate
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robberies occurring over a two-month period. Id. at 1017–18.
The district court did not err in counting Wilks’ youthful offender
convictions separately and applying the armed career criminal enhancement under
§ 924(e) to his sentence. Because the offenses were committed on different
occasions, it does not matter that the sentences were imposed upon him on the
same day.
Wilks’ reliance on Delvecchio is misplaced. We held in Delvecchio that
where a defendant is sentenced simultaneously, pursuant to Fed. R. Crim. P. 20, his
sentences are related and cannot be assessed separately under the guidelines. 920
F.2d at 812–13. Wilks’ prior convictions did not result in simultaneous sentences
under Rule 20, because Wilks was sentenced under state law. Moreover,
Delvecchio interpreted the 1990 sentencing guidelines, while Wilks was sentenced
under the 2004 guidelines. The commentary explaining what is meant by “related
cases” is different in each version. Compare U.S.S.G. § 4A1.2 cmt. n.3 (2004)
with U.S.S.G. § 4A1.2 cmt. n.3 (1990). Specifically, Note 3 of the commentary to
§ 4A1.2 in the 1990 guidelines lacks a crucial statement that is present in Note 3 of
the commentary to § 4A1.2 in the 2004 guidelines: “Prior sentences are not
considered related if they were for offenses that were separated by an intervening
arrests (i.e. the defendant is arrested for the first offense prior to committing the
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second offense).” § 4A1.2 cmt. n.3 (2004). The Note 3 commentary in the 1990
version of the guidelines also does not contain the “otherwise” qualifier that is
present in the 2004 version of the guidelines that applies to this case. Compare
U.S.S.G. § 4A1.2 cmt. n.3 (2004) with U.S.S.G. § 4A1.2 cmt. n.3 (1990).
“When it comes to the interpretation of the guidelines, ‘Commentary and
Application Notes of the Sentencing Guidelines are binding on the courts unless
they contradict the plain meaning of the text of the Guidelines.’” United States v.
Lebovitz, 401 F.3d 1263, 1269 n.3 (11th Cir. 2005) (quoting United States v.
Murrell, 368 F.3d 1283, 1288 n.4 (11th Cir. 2004)). We are bound by the § 4A1.2
Note 3 commentary in the 2004 guidelines because it does not contradict the plain
meaning of § 4A1.2. That commentary clearly means that where, as here, a
defendant is sentenced simultaneously for offenses separated by an intervening
arrest, the cases are not related under § 4A1.2.
III.
Finally, Wilks contends that the application of the U.S.S.G. § 4B1.1 and 18
U.S.C. § 924(e)(1) enhancements to his sentence resulted in an unreasonable
sentence under Booker. We disagree.
After Booker, we review a defendant’s sentence for “unreasonableness” in
the context of the § 3553(a) factors. See Booker, 543 U.S. at 264, 125 S. Ct. at
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767; United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). Section
3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just punishment for
the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the
need to provide the defendant with educational or vocational training or medical
care; (6) the kinds of sentences available; (7) the advisory guidelines range; (8) the
need to avoid unwanted sentencing disparities; and (9) the need to provide
restitution to victims. See 18 U.S.C. § 3553(a).
“Review for reasonableness is deferential.” United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). “[N]othing in Booker or elsewhere requires the
district court to state on the record that it has explicitly considered each of the §
3553(a) factors or to discuss each of the § 3553(a) factors.” United States v. Scott,
426 F.3d 1324, 1329 (11th Cir. 2005); United States v. Robles, 408 F.3d 1324,
1328 (11th Cir. 2005) (stating that post-Booker district courts are not required to
conduct an accounting of every § 3553(a) factor and explain how each factor
played a role in the sentencing decision). The party challenging a sentence bears
the burden of establishing unreasonableness in light of the § 3553(a) factors and
the record established in the district court. Talley, 431 F.3d at 788.
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The district court stated that it had considered the § 3553(a) factors and the
advisory guidelines range in determining Wilks’ sentence. It explained its
concerns about the seriousness of the offense, Wilks’ significant criminal history,
and the need to deter future criminal conduct. The district court also took into
account Wilks’ age at the time of the predicate offenses in deciding on a sentence
of 212 months imprisonment. That sentence is fifty months shorter than the low
end of Wilks’ recommended guidelines range of 262–367 months. Wilks has
failed to meet his burden of showing that his sentence is unreasonable.
AFFIRMED.
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