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United States v. Smith

United States District Court, E.D. Tennessee, Greeneville

May 29, 2019

UNITED STATES OF AMERICA
v.
JUSTIN CHRISTOPHER SMITH

          MEMORANDUM AND ORDER

          Leon Jordan United States District Judge.

         The 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.

         The 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. [Doc. 45].

         The 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.

         I. Background

         The PSR 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.

         The 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.

         II. Authority and Analysis

         Crimes 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 business locations.

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).

         As 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 ...


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