United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM AND ORDER
Jordan United States District Judge.
defendant pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). He will
be sentenced on July 11, 2019.
United States Probation Office has prepared and disclosed a
Presentence Investigation Report (“PSR”) [doc.
41], which deems the defendant an Armed Career Criminal under
the Armed Career Criminal Act (“ACCA”).
See 18 U.S.C. § 924(e)(1) (“In the case
of a person who violates section 922(g) of this title and has
three previous convictions by any court referred to in
section 922(g)(1) of this title for a violent felony or a
serious drug offense, or both, committed on occasions
different from one another, such person shall be fined under
this title and imprisoned not less than fifteen years . . .
.”). The defendant objects to his ACCA designation.
defendant has submitted supplemental briefing and the United
States has filed a response in opposition. [Docs. 46, 48].
For the reasons that follow, the objection will be overruled.
cites three prior convictions, found at paragraphs 37, 40,
and 41, as ACCA predicates. Paragraph 37 lists a September
17, 2001 conviction in the Circuit Court for Pinellas County,
Florida, for resisting an officer with violence. Paragraph 40
lists a September 30, 2003 robbery conviction, also in the
Circuit Court of Pinellas County, Florida. According to the
PSR, the defendant committed the robbery on April 17, 2002,
fled the scene, and was arrested the following day. Lastly,
at paragraph 41, the PSR lists a September 30, 2003
conviction for resisting arrest with violence, again in the
Circuit Court of Pinellas County. According to the PSR, on
April 18, 2002, the defendant used, or threatened to use,
violence while a law enforcement officer was attempting to
arrest him for the previously-mentioned robbery.
defendant does not argue that his 2001 conviction is
not an ACCA predicate. Nor does he argue that robbery and
resisting arrest with violence under Florida law are not
“violent felonies” for purposes of the ACCA.
See Stokeling v. United States, 139 S.Ct. 544, 555
(2019) (“Robbery under Florida law . . . qualifies as a
‘violent felony' under ACCA's elements
clause.”); United States v. Hill, 799 F.3d
1318, 1322 (11th Cir. 2015) (“[A] prior
[Florida] conviction for resisting an officer with violence
categorically qualifies as a violent felony under the
elements clause of the ACCA.”). Instead, the defendant
objects that his April 2002 crimes of robbery and resisting
arrest were not in fact “committed on occasions
different from one another” as required by the ACCA.
Authority and Analysis
are committed on different occasions from one another for
purposes of the ACCA if:
1. It is possible to discern the point at which the first
offense is completed, and the subsequent point at which the
second offense begins;
2. It would have been possible for the offender to cease his
criminal conduct after the first offense, and withdraw
without committing the second offense; or
3. The offenses are committed in different residences or
United States v. Paige, 634 F.3d 871, 873
(6th Cir. 2011) (citing and quoting United
States v. Hill, 440 F.3d 292, 297-98 (6th
Cir. 2006)). The prosecution bears the burden of proving, by
a preponderance of the evidence, that the prior crimes were
indeed committed on different occasions. See United
States v. Pham, 872 F.3d 799, 801 (6th Cir.
2017). “[T]he fact that a defendant was convicted for
two offenses during the same judicial proceeding does not
prevent those offenses from constituting ‘occasions
different' under the ACCA.” United States v.
McCauley, 548 F.3d 440, 448 (6th Cir. 2008).
noted, the defendant objects that his 2002 ACCA predicates
were not committed on different occasions. The Pinellas
County charging instrument (the “Felony
Information”) states that each offense took place on
April 17, 2002, rather than on consecutive dates as listed in
the PSR. [Doc. 46, ex. 2]. A charging instrument is an
approved Shepard ...