U.S. v. Harris, No. 04-1536.

CourtU.S. Court of Appeals — Tenth Circuit
Writing for the CourtTymkovich
Citation447 F.3d 1300
Docket NumberNo. 04-1536.
Decision Date15 May 2006
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael Kevin HARRIS, Defendant-Appellant.
447 F.3d 1300
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Kevin HARRIS, Defendant-Appellant.
No. 04-1536.
United States Court of Appeals, Tenth Circuit.
May 15, 2006.

Page 1301

Barrett T. Weisz, Richilano & Ridley, P.C., Denver, CO, for Defendant-Appellant.

Martha A. Paluch, Assistant United States Attorney, (William J. Leone, Acting United States Attorney, with her on the brief), Office of the United States Attorney, Denver, CO, for Plaintiff-Appellee.

Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.


Michael Harris was convicted of firearm possession and sentenced to the statutory minimum of fifteen years as a career criminal. On appeal, he asks us to consider the scope of the "prior conviction" exception to the rule established in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), specifically, whether a jury, rather than a judge, must determine if prior crimes were committed on separate occasions under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The district court concluded that this determination was included within the prior conviction exception and could be made by the court. We agree and, therefore, AFFIRM.

I. Background

Harris was indicted for possessing a firearm after previously being convicted of a felony in violation of 18 U.S.C.

Page 1302

§ 922(g)(1). Typically, a person who violates § 922(g) faces a sentence of up to ten years. 18 U.S.C. § 924(a)(2). However, under the ACCA, a person who violates § 922(g) is subject to an enhanced penalty if he "has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another." Id. § 924(e)(1). The enhanced penalty is a mandatory fifteen years to life. Id.

Pursuant to a written plea agreement, Harris pled guilty to violating § 922(g). As part of the plea he acknowledged he had evaded police officers in a high-speed car chase that ended with him leaving his vehicle and fleeing from police on foot. When the police finally captured him, they found a .45 caliber Colt pistol about twenty feet from his car and matching ammunition on him and in his car.

Harris also admitted that, prior to this incident, he had been convicted of several different felonies: robbery, second degree burglary, possession of a weapon by a previous offender, and two convictions for drug distribution. Prior to sentencing the probation office prepared a presentence report (PSR), concluding that Harris's prior criminal history made him eligible for sentence enhancements as an armed career criminal. The PSR listed these crimes and noted they occurred years apart and in different jurisdictions. Harris did not object to the factual assertions in the PSR, arguing instead that whether his prior convictions were "committed on occasions different from one another" was a question of fact that a jury, not a judge, must decide:

Answering this question necessarily requires that the Court look to the actual conduct of the defendant supporting the convictions, not merely the date on which [the] judgment of conviction [was] entered. In contrast, to determine whether a conviction exists and whether it constitutes a violent felony or serious drug offense, the Court need only look to the face of the conviction and need not inquire into the facts of the offense.

Vol. I, Doc. 38, Pg. 6. He continued, "[T]he single criminal episode rule requires the trial court to inquire into, not the date of conviction, but the factual circumstances underlying the conviction. In state[] criminal cases the date of conviction says very little about when the offenses were actually committed." Id. at 7.

At the sentencing hearing, the government urged the court to treat this fact as one of a prior conviction and to find it satisfied based on charging documents and judgments from the prior convictions. Harris again responded that because the court would have to look at the facts underlying the conviction, rather than simply the conviction itself, the prior conviction exception would not apply.

The court rejected Harris's argument:

Clearly I can review the judgment of conviction and the statute upon which they are based, and I conclude that inherent in a fact of conviction is the time and place of conviction. And in this instance we have significant break-up between three, the first two which are also distinct crimes of jurisdiction of authority and a four-year difference, and then another significant temporal break to the drug convictions in 1998, which are again separated by place of conviction. And there may be some connection, but even if there were and one were not to separate the two drug convictions, we still would be left with three.

Vol. III, Pg. 15.

The court found the ACCA satisfied, and since the high end of the applicable range (168 months) under the United States Sentencing Guidelines was below the ACCA's 180-month mandatory minimum, the court imposed the higher sentence.

Page 1303

II. Analysis

Harris makes three claims on appeal: (1) the district court violated the Sixth Amendment when it, rather than a jury, concluded his prior crimes were committed on different occasions; (2) the district court improperly relied on the PSR in reaching this conclusion; and (3) under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), imposition of the mandatory minimum sentence violated the Sixth Amendment.

A. Scope of Prior Conviction Exception

Harris first argues that the district court violated his Sixth Amendment rights by determining that his prior crimes were committed on different occasions. This argument asks us to define the scope of the "prior conviction exception" to the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The scope of the prior conviction exception is critical to the proper application of the ACCA, which requires sentencing courts to enhance a defendant's sentence based on his prior criminal record. The ACCA applies where the defendant "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). Thus, imposition of the ACCA requires: (1) that at least three prior convictions exist, (2) that those convictions were either for a violent felony or a serious drug offense, and (3) that the prior offenses were committed on different occasions from one another.

Harris claims these facts must be submitted to a jury. In Apprendi, however, the Supreme Court expressly excluded a defendant's prior criminal history as a matter for jury deliberation: "Other than the fact of a 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." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). The Supreme Court reaffirmed this holding last year in Booker: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." 543 U.S. at 244, 125 S.Ct. 738 (emphasis added).

Applying this authority, we have recently held that all three elements of the ACCA are properly assessed by the sentencing court.1 First, the requisite number of convictions of the defendant is a question for the court. United States v. Moore, 401 F.3d 1220, 1226 (10th Cir. 2005). Second, whether a particular conviction was for a "violent felony" under § 924(e) is also a question of law for the court since it "involves an inquiry intimately related to whether a prior conviction exists, and therefore falls within the prior convictions exception to the Apprendi rule." Id. at 1225. Finally, we most recently held that "whether prior convictions happened on different occasions from one another is not a fact required to be determined by a jury but is instead a matter for the sentencing court." United States v. Michel, 446 F.3d 1122 (10th Cir.2006).

Page 1304

As we explained in Michel, every circuit court to consider the issue has concluded the question is one for the sentencing court, not a jury. United States v. Thompson, 421 F.3d 278, 284-85 (4th Cir. 2005); United States v. Wilson, 406 F.3d 1074, 1074 (8th...

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59 practice notes
  • U.S. v. West, No. 06-4284.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 10, 2008
    ...`may accept any undisputed portion of the presentence report as a finding of fact.' Fed. R.Crim.P. 32(i)(3)(A)." United States v. Harris, 447 F.3d 1300, 1306 (10th Cir. 550 F.3d 957 2006); see also United States v. Avalos, 506 F.3d 972, 979-80 (10th Cir.2007) (noting that "a defendant must ......
  • U.S. v. Ramirez, No. 04-4305.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 16, 2007
    ...v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), "does not apply to statutory minimum sentences." United States v. Harris, 447 F.3d 1300, 1307 (10th Cir.2006). Consequently, although we cannot tell from the provided record how the minimum mandatory on one count factored into ......
  • United States v. Smith, Crim. No. 10-CR-20058
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 30, 2015
    ...for sentencing in state court, took place on different dates and involved different victims.); see also United States v. Harris, 447 F.3d 1300 (10th Cir. 2006) (holding that district court could rely on PSR in finding that separate occasions requirement of ACCA was satisfied where crimes we......
  • United States v. Dudley, 19-10267
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 22, 2021
    ...that the ACCA's different-occasions determination falls within the Almendarez-Torres and Apprendi exceptions); United States v. Harris, 447 F.3d 1300, 1303-04 (10th Cir. 2006) (holding that "all three elements of the ACCA"-(1) the number of prior convictions, (2) whether a prior conviction ......
  • Request a trial to view additional results
59 cases
  • U.S. v. West, No. 06-4284.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 10, 2008
    ...`may accept any undisputed portion of the presentence report as a finding of fact.' Fed. R.Crim.P. 32(i)(3)(A)." United States v. Harris, 447 F.3d 1300, 1306 (10th Cir. 550 F.3d 957 2006); see also United States v. Avalos, 506 F.3d 972, 979-80 (10th Cir.2007) (noting that "a defendant must ......
  • U.S. v. Ramirez, No. 04-4305.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 16, 2007
    ...v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), "does not apply to statutory minimum sentences." United States v. Harris, 447 F.3d 1300, 1307 (10th Cir.2006). Consequently, although we cannot tell from the provided record how the minimum mandatory on one count factored into ......
  • United States v. Smith, Crim. No. 10-CR-20058
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 30, 2015
    ...for sentencing in state court, took place on different dates and involved different victims.); see also United States v. Harris, 447 F.3d 1300 (10th Cir. 2006) (holding that district court could rely on PSR in finding that separate occasions requirement of ACCA was satisfied where crimes we......
  • United States v. Dudley, 19-10267
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 22, 2021
    ...that the ACCA's different-occasions determination falls within the Almendarez-Torres and Apprendi exceptions); United States v. Harris, 447 F.3d 1300, 1303-04 (10th Cir. 2006) (holding that "all three elements of the ACCA"-(1) the number of prior convictions, (2) whether a prior conviction ......
  • Request a trial to view additional results

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