NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0394n.06
No. 22-5056
UNITED STATES COURT OF APPEALS
FILED
FOR THE SIXTH CIRCUIT Oct 03, 2022
DEBORAH S. HUNT, Clerk
)
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE EASTERN DISTRICT OF
) TENNESSEE
GREGORY ALLEN COOK, )
Defendant-Appellant. ) OPINION
)
Before: GUY, WHITE, and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. Gregory Cook pleaded guilty to being a felon in possession of
firearms. The district court sentenced him to a fifteen-year sentence after concluding that, for
purposes of the Armed Career Criminal Act (ACCA), his three prior burglary convictions
constituted violent felonies committed on different occasions. Cook challenges his sentence,
claiming that a jury had to determine whether his prior burglary convictions were committed on
different occasions. Binding precedent forecloses Cook’s argument, so we AFFIRM.
I.
Cook pleaded guilty to possessing firearms as a felon after police found four handguns and
numerous ammunition rounds spread throughout Cook’s car and home. Normally, a defendant
would face a maximum penalty of ten years’ imprisonment for that offense. 18 U.S.C. § 924(a)(2).
Cook, however, had six prior Tennessee burglary convictions, each of which qualifies as a violent
felony under the ACCA, see id. § 924(e)(2)(B)(ii); United States v. Ferguson, 868 F.3d 514, 515
No. 22-5056, United States v. Cook
(6th Cir. 2017). So the Presentence Report recommended that the district court sentence Cook to
the fifteen-year minimum sentence required by the ACCA for having three prior convictions for a
violent felony. 18 U.S.C. § 924(e)(1). Over Cook’s objection to the enhancement, the district
court sentenced Cook to the ACCA mandatory minimum. Cook now appeals his ACCA-enhanced
sentence.
II.
The ACCA imposes a mandatory minimum fifteen-year sentence for a person who
“violates section 922(g) of this title and has three previous convictions . . . for a violent felony . . .
committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). “This requires two
separate inquires: (1) whether prior convictions qualify as ACCA-predicates, and (2) whether
such offenses were committed on different occasions.” United States v. Hennessee, 932 F.3d 437,
441 (6th Cir. 2019). Cook challenges only the latter inquiry on appeal. We review de novo the
district court’s conclusion that Cook’s prior convictions occurred on different occasions. United
States v. Southers, 866 F.3d 364, 369 (6th Cir. 2019).
Cook argues that “[t]he district court violated [his] rights under the Fifth and Sixth
Amendments when it found, by a preponderance of evidence and based on information contained
in state court records, that he committed three prior offenses ‘on occasions different from one
another.’” Appellant Br. at 11 (quoting 18 U.S.C. § 924(e)(1)). According to Cook, such facts
“should have been charged in the indictment and found by a jury beyond a reasonable doubt.” Id.
at 12.
Cook acknowledges, however, that circuit precedent forecloses this argument. “[T]his
court has already held that ‘consistent with Apprendi [v. New Jersey, 530 U.S. 466 (2000)], a
sentencing judge may answer the question of whether prior offenses were committed on occasions
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No. 22-5056, United States v. Cook
different from one another.’” United States v. Williams, 39 F.4th 342, 351 (6th Cir. 2022)
(alteration in original) (citation omitted) (quoting United States v. King, 853 F.3d 267, 274 (6th
Cir. 2017)); see also Hennessee, 932 F.3d at 444; United States v. Burgin, 388 F.3d 177, 186 (6th
Cir. 2004).
Cook attempts to sidestep this precedent by arguing that those cases either came before or
overlooked two Supreme Court cases that make clear that the different-occasions question is for
the jury: United States v. Hayes, 555 U.S. 415 (2009), and Nijhawan v. Holder, 557 U.S. 29
(2009). See Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686, 720 (6th Cir. 2016) (A panel
may overrule a prior binding precedent if the “precedent overlooked earlier Supreme Court
authority.”). Neither case, however, involved the ACCA or the different-occasions requirement.
They give us no authority to revisit our binding precedent.
The Supreme Court’s recent opinion in Wooden v. United States, 142 S. Ct. 1063 (2022)
doesn’t alter this conclusion. In Wooden, the Supreme Court addressed whether burglarizing ten
adjoining units in a single storage facility by burrowing through the walls constituted ten different
occasions for purposes of the ACCA. Id. at 1067. Based on the facts of the case and the ordinary
meaning of “occasions,” the Court concluded that they didn’t. Id. at 1074. But the defendant in
Wooden raised no constitutional challenge to his sentence. See id. at 1087 n.7 (Gorsuch, J.,
concurring in the judgment). So Wooden didn’t disrupt our prior caselaw.
Cook also suggests that the winds are shifting on this issue, noting that two Justices of the
Supreme Court and several circuit judges have questioned whether allowing a judge to find the
different-occasions requirement by a preponderance might violate a defendant’s Fifth and Sixth
Amendment rights. See id.; see also United States v. Dudley, 5 F.4th 1249, 1273–78 (11th Cir.
2021) (Newsom, J., concurring in part and dissenting in part); United States v. Perry, 908 F.3d
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No. 22-5056, United States v. Cook
1126, 1134–36 (8th Cir. 2018) (Stras, J., concurring); United States v. Thompson, 421 F.3d 278,
291–95 (4th Cir. 2005) (Wilkins, C.J., dissenting). And in a post-briefing letter, the government
informed us that it has changed its own thinking on this question; it now believes “that a jury
should find (or a defendant should admit) that [the] ACCA predicates were committed on
occasions different from one another.” App. R. 33. Nonetheless, the government asks us to affirm
Cook’s sentence on the ground that this court’s binding precedent forecloses that argument. The
government is right. The Supreme Court has not answered this question, so we must follow our
precedent. See Salmi v. Sec’y of Health & Hum. Servs., 774 F.2d 685, 689 (6th Cir. 1985). The
district court therefore didn’t err by applying the ACCA enhancement.
***
We AFFIRM.
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