USCA11 Case: 22-11682 Document: 27-1 Date Filed: 06/26/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11682
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODNEY BURKE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:18-cr-00017-CDL-MSH-1
____________________
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2 Opinion of the Court 22-11682
Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Following resentencing, Rodney Eugene Burke, Sr. appeals
from his sentence of 180 months’ imprisonment for one count of
being a felon in possession of a firearm. He argues for the first time
on appeal that the district court violated his Fifth and Sixth
Amendment rights when it imposed a sentence enhancement
under the Armed Career Criminal Act (“ACCA”) where the
indictment failed to allege that the three predicate offenses were
committed on different occasions from one another and the
government failed to submit the issue to the jury. Because Burke’s
claim is foreclosed by binding precedent, we affirm.
I. Background
In 2018, following a bifurcated trial, a jury convicted Burke
of one count of possession of methamphetamine with intent to
distribute and one count of possession of a firearm by a convicted
felon. United States v. Burke, 823 F. App’x 777, 778 (11th Cir. 2020).
The district court determined that Burke qualified as an armed
career criminal because Burke had three prior convictions for a
violent felony or a serious drug offense. 1 The district court
1 The ACCA mandates a minimum term of imprisonment of 15 years for “a
person who violates section 922(g) . . . and has three previous convictions . . .
for a violent felony or a serious drug offense, or both, committed on occasions
different from one another.” 18 U.S.C. § 924(e)(1) (emphasis added). At the time
of Burke’s offense, without the ACCA enhancement, a violation of § 922(g)
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22-11682 Opinion of the Court 3
sentenced Burke to a total of 240 months’ imprisonment to be
followed by 8 years’ supervised release, and we affirmed his
sentence on appeal. Id. Burke did not challenge the ACCA
enhancement at sentencing or on direct appeal. See id.
Following his direct appeal, Burke filed a federal habeas
petition under 28 U.S.C. § 2255, arguing that his convictions should
be vacated because his counsel provided constitutionally
ineffective assistance when he failed to challenge the mixture or
substance that served as the basis for the drug-related count. The
district court granted Burke relief in part, vacated the drug
conviction, and ordered resentencing for the firearm count.
At resentencing, the district court again determined that
Burke qualified as an armed career criminal. 2 Importantly, at the
resentencing hearing, Burke did not raise the Fifth and Sixth
Amendment issue related to the ACCA enhancement that he now
seeks to raise on appeal. Instead, Burke argued that one of the
alleged predicate offenses did not qualify as a violent felony for
carried a statutory maximum of only ten years’ imprisonment. Id. § 924(a)(2)
(2018). Notably, in 2022, Congress amended § 924 and a violation of § 922(g)
without the ACCA enhancement now carries a statutory maximum of 15
years’ imprisonment. Id. § 924(a)(8) (2022).
2 Burke’srevised PSI listed four qualifying predicate convictions from Georgia
that served as the basis for the ACCA enhancement: (1) a 1994 burglary
conviction; (2) a 2008 burglary conviction; (3) 2011 convictions for unlawful
possession of pseudoephedrine, possession of substances with intent to
manufacture controlled substances, and criminal attempt to commit a felony;
and (4) 2014 convictions for possession with intent to distribute
methamphetamine and possession with intent to distribute marijuana.
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4 Opinion of the Court 22-11682
purposes of the ACCA, but then conceded that the ACCA
enhancement was proper because Burke had three other qualifying
convictions.3 Additionally, Burke argued for a below-guidelines
sentence and asserted that the statutory minimum of 15 years’
imprisonment was “certainly sufficient to punish [him] for his
conduct in this case.” The district court sentenced Burke to the
statutory mandatory minimum of 180 months’ imprisonment,
(which was below Burke’s advisory guidelines range of 210 to 262
months’ imprisonment), to be followed by 3 years’ supervised
release. This appeal followed.
II. Discussion
Burke argues for the first time on appeal that the
government waived application of the ACCA enhancement “by
not including the different-occasions allegation in [the]
indictment,” and that the district court violated his Fifth and Sixth
Amendment rights by imposing the sentencing enhancement
where the government failed to allege in the indictment that the
predicate convictions were committed on different occasions from
one another and failed to submit the issue to the jury.
We generally review constitutional challenges to a
defendant’s sentence de novo. United States v. Bowers, 811 F.3d 412,
430 (11th Cir. 2016). However, where, as here, the defendant fails
3 In light of Burke’s concession, the district court concluded that his objection
was moot. Nonetheless, the district court stated that, even if the court had
considered the objection, it would have found that the challenged burglary
conviction qualified as a violent felony.
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22-11682 Opinion of the Court 5
to make a timely constitutional objection in the district court, we
review the claim for plain error only. United States v. McKinley, 732
F.3d 1291, 1295 (11th Cir. 2013). Under this stringent standard,
“there must be (1) error, (2) that is plain, and (3) that affects
substantial rights. If all three conditions are met, we may then
exercise our discretion to correct the error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 1296 (quotations and internal citation
omitted). For an error to be plain, it must be “contrary to explicit
statutory provisions or to on-point precedent in this Court or the
Supreme Court.” United States v. Hoffman, 710 F.3d 1228, 1232 (11th
Cir. 2013) (quotations omitted).
Burke cannot show that any error, much less plain error,
occurred because his claim is foreclosed by Supreme Court
precedent as well as precedent from this Court. Specifically, in
Almendarez–Torres v. United States, the Supreme Court held that, for
sentencing enhancement purposes, a judge, rather than a jury, may
determine “the fact of an earlier conviction.” 523 U.S. 224, 226–27,
234–35 (1998). In other words, the government does not have to
charge a prior conviction in the indictment or submit the fact of a
prior conviction to a jury. See id. Thereafter, in Apprendi v. New
Jersey, the Supreme Court held that, under the Due Process Clause
of the Fourteenth Amendment4 and the notice and jury trial
guarantees of the Sixth Amendment, “[o]ther than the fact of a
4The language of the Due Process Clauses of the Fifth and Fourteenth
Amendment are virtually identical.
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prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490
(2000); see also Jones v. United States, 526 U.S. 227, 243 n.6 (1999)
(“[U]nder the Due Process Clause of the Fifth Amendment and the
notice and jury trial guarantees of the Sixth Amendment, any fact
(other than prior conviction) that increases the maximum penalty
for a crime must be charged in an indictment, submitted to a jury,
and proven beyond a reasonable doubt.”). As is evident from the
language of Apprendi’s holding, Apprendi did not alter the pre-
existing rule from Almendarez–Torres. Subsequently, in Alleyne v.
United States, the Supreme Court extended Apprendi and held that
any facts that increase a mandatory-minimum sentence must be
submitted to a jury and proved beyond a reasonable doubt. 570
U.S. 99, 116 (2013). But in so holding, the Supreme Court expressly
declined to alter the Almendarez–Torres rule. Id. at 111 n.1
(“Because the parties do not contest [the] vitality [of Almendarez-
Torres], we do not revisit it for purposes of our decision today.”).
Thus, Almendarez–Torres remains a narrow exception to the
rules set forth in Apprendi and Alleyne. And although there may be
some tension between Almendarez-Torres and Apprendi and Alleyne,
“we are bound to follow Almendarez-Torres unless and until the
Supreme Court itself overrules that decision.” United States v.
Smith, 775 F.3d 1262, 1266 (11th Cir. 2014) (quotations omitted); see
also United States v. Weeks, 711 F.3d 1255, 1259 (11th Cir. 2013),
abrogated on other grounds by Descamps v. United States, 570 U.S. 254
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22-11682 Opinion of the Court 7
(2013) (“[W]e have consistently held that Almendarez–Torres
remains good law . . . .”).
The ACCA refers to three previous qualifying predicate
convictions that were “committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1). To qualify as offenses committed
on different occasions from one another under the ACCA, the
offenses must be “temporally distinct” and arise from “separate
and distinct criminal episode[s].” United States v. Sneed, 600 F.3d
1326, 1329 (11th Cir. 2010) (quotations omitted). The government
bears the burden of proving by a preponderance of the evidence
that the prior convictions “more likely than not arose out of
separate and distinct criminal episode[s].” United States v. McCloud,
818 F.3d 591, 596 (11th Cir. 2016) (alteration in original) (quotations
omitted). “As long as a court limits itself to Shepard[ 5]-approved
sources, the court may determine both the existence of prior
convictions and the factual nature of those convictions, including
whether they were committed on different occasions, based on its
own factual findings.” United States v. Dudley, 5 F.4th 1249, 1259–60
(11th Cir. 2021), cert. denied, 142 S. Ct. 1376 (2022) (quotations
omitted). Thus, “we have repeatedly rejected the argument that
judicially determining whether prior convictions were committed
5 Shepard v. United States, 544
U.S. 13, 26 (2005) (holding that when conducting
certain inquires related to prior convictions courts are limited to certain
judicial record evidence—charging instruments, terms of a plea agreement, or
“transcript of colloquy between judge and defendant in which the factual basis
for the plea was confirmed by the defendant, or to some comparable judicial
record”).
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8 Opinion of the Court 22-11682
on different occasions from one another for purposes of the ACCA
violates a defendant’s Fifth and Sixth Amendment rights.” Id. at
1260; United States v. Longoria, 874 F.3d 1278, 1283 (11th Cir. 2017);
Weeks, 711 F.3d at 1258–60. And recently, in Wooden v. United States,
the Supreme Court expressly declined to address “whether the
Sixth Amendment requires that a jury, rather than a judge, resolve
whether prior crimes occurred on a single occasion.” 142 S. Ct.
1063, 1068 n.3 (2022). Accordingly, Burke’s claim is foreclosed by
Almendarez-Torres, as well as numerous decisions from this Circuit. 6
Consequently, we affirm his sentence.
6 Even if not foreclosed, Burke’s claim fails because he invited any error by
conceding at the resentencing hearing that the ACCA enhancement was
proper. Under the doctrine of invited error, we will not reverse, even for plain
error, an error that the appellant induced the district court to make. United
States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006). A defendant invites the
district court to err when he “expressly acknowledge[s]” that the court may
take the action of which the defendant complains on appeal. Id.; United States
v. Carpenter, 803 F.3d 1224, 1236 (11th Cir. 2015).
Notwithstanding the above, even assuming there was error, Burke’s
claim fails on the merits because he cannot show that any error affected his
substantial rights for purposes of plain error review. See Greer v. United States,
141 S. Ct. 2090, 2099 (2021) (explaining that “the general rule is that a
constitutional error does not automatically require reversal of a conviction”
(quotations omitted)); see also United States v. King, 751 F.3d 1268, 1279 (11th
Cir. 2014) (holding that Apprendi and Alleyne errors are subject to harmless
error analysis). “[A]n appellate court conducting plain-error review may
consider the entire record,” “including information contained in a pre-
sentence report.” Greer, 141 S. Ct. at 2098 (emphasis omitted); United States v.
Reed, 941 F.3d 1018, 1021 (11th Cir. 2019) (explaining that we “may consult the
whole record when considering the effect of any error on [the defendant’s]
substantial rights” (quotations omitted)). Here, the record, including the
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AFFIRMED.
undisputed in statements in the PSI, establishes that each of the ACCA
predicate offenses were committed years apart—i.e., on different occasions
from one another. Thus, based on this record, Burke cannot “show a
reasonable probability that, but for the error, the outcome of the proceeding
would have been different.” Molina-Martinez v. United States, 578 U.S. 189, 194
(2016) (quotations omitted).