United States v. Weeks

• Decision Date: 31 January 2013
• Docket Number: No. 12–11104,Non–Argument Calendar.,12–11104,n–Argument Calendar.
• Citation: 711 F.3d 1255
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Timothy Allen WEEKS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

711 F.3d 1255

UNITED STATES of America, Plaintiff–Appellee,

v.Timothy Allen WEEKS, Defendant–Appellant.

No. 12–11104

Non–Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Jan. 31, 2013.

Susan Hollis Rothstein–Youakim, Michelle Thresher Taylor, Robert E. O'Neill, U.S. Attys., Tampa, FL, John Matthew Guard, U.S. Atty., Jacksonville, FL, for Plaintiff–Appellee.

Sylvia Irvin, Fed. Pub. Def., Jacksonville, FL, Rosemary Cakmis, Donna Lee Elm, Fed. Pub. Def., Orlando, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Middle District of Florida.

Before CARNES, HULL and JORDAN, Circuit Judges.

PER CURIAM:

Timothy Weeks appeals his 180–month sentence imposed after pleading guilty to one count of possession of a firearm and ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Weeks contends that the district court erred in imposing the mandatory minimum sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), based on his prior felony convictions for three burglary offenses and one count of aggravated battery.

I.

Weeks was indicted by a federal grand jury on one count of possessing a firearm and ammunition as a convicted felon. The indictment alleged that Weeks had been convicted of five prior felony offenses in Florida: three for burglary of a structure, one for possession of burglary tools, and one for aggravated battery with a deadly weapon. The indictment indicated that two of the burglary convictions arose from a single criminal case, and that all of the prior convictions, except for aggravated battery, were entered on April 1, 1999. The indictment did not list the dates on which any of the underlying offenses occurred.

Weeks pleaded guilty to the charged offense without a written plea agreement and, at his plea colloquy, admitted only that he had a prior felony conviction for possession of burglary tools. Weeks' presentence investigation report found that he was subject to an enhanced mandatory minimum sentence under the ACCA because he had four prior convictions for violent felonies that were “committed on occasions different from one another,” specifically his three prior convictions for burglary of a structure and his conviction for aggravated battery with a deadly weapon.

Weeks objected to the application of the ACCA on numerous grounds. First, he maintained that the district court could not impose an enhanced sentence under the ACCA without violating his Fifth and Sixth Amendment rights because the government did not allege in the indictment or prove beyond a reasonable doubt that his prior qualifying convictions were committed on occasions different from one another, as required by § 924(e). Second, Weeks asserted that two of the burglary convictions should count as a single qualifying offense because they occurred on the same day, December 2, 1997, and involved two businesses that were only 56 feet apart from one another, a distance that could be covered on foot in approximately 13 seconds. Finally, he objected to the PSI's factual summaries of his underlying offenses under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), because they were based on arrest reports and booking sheets, not the charging documents, terms of any plea agreements, or comparable judicial records.

Weeks reiterated his arguments at sentencing and moved to withdraw his guilty plea and to be allowed to submit his status under the ACCA to a jury. The district court denied the request, concluding that the question of whether his prior offenses were separate and distinct was a sentencing issue that did not need to be submitted to a jury. The government then introduced the charging documents and final judgments for Weeks' prior burglary convictions, as well as the final judgment for his conviction for aggravated battery. One information charged Weeks with unlawfully entering a My Pizza restaurant on November 27, 1997, with the intent to commit theft therein. The corresponding final judgment showed that Weeks pleaded nolo contendere to burglary of a structure, a third-degree felony, on April 1, 1999. The second information, which charged Weeks with two counts of burglary of a structure, alleged that Weeks and two cohorts unlawfully entered Shirley's Restaurant on December 2, 1997, with the intent to commit theft therein, and unlawfully entered the Florida Times Union Building that very day with the same intent. The final judgment showed that Weeks pleaded nolo contendere to those charges on April 1, 1999. The final judgment for Weeks' conviction for aggravated battery with a deadly weapon merely established that he pleaded guilty to that offense on April 1, 1999.

Weeks again objected to the classification of the two burglaries committed on December 2, 1997, as separate and distinct offenses, arguing that the spatial and temporal proximity of Shirley's Restaurant and the Florida Times Union Building did not leave him with enough time “to make a new and different intent to enter into a separate building.” The district court overruled Weeks' objection, finding that his prior burglary and aggravated battery offenses were each separate and distinct. As to the two burglaries committed on December 2, 1997, the district court noted that the charging documents showed that they involved separate structures and then explained:

There is nothing in the record that shows the distance or the time that one would take to get from one building to the other, but the elements of [a] burglary offense would require an entering. If one enters a structure, they then have to leave the structure before entering a second structure, so as far as the Court is concerned, there is a break between the first burglary of Shirley's Restaurant and the second of the Times–Union building.

The court then sentenced Weeks to 180 months imprisonment, the mandatory minimum sentence prescribed by the ACCA.

II.

Weeks first contends that the district court violated his Fifth and Sixth Amendment rights by judicially determining that his prior convictions were “committed on occasions different from one another,” as required by the ACCA. Weeks argues that, in light of the Supreme Court's decision in Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), circumstance-specific facts, like those required under the ACCA's different-occasions inquiry, may not serve as a basis for sentencing enhancements unless they are alleged in an indictment and proven to a jury beyond a reasonable doubt.¹

We review de novo properly preserved constitutional challenges to a sentence. United States v. Paz, 405 F.3d 946, 948 (11th Cir.2005). Under the ACCA, a defendant convicted under 18 U.S.C. § 922(g) is subject to a mandatory minimum sentence of 15 years imprisonment if he has three prior convictions for a violent felony or serious drug offense “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). In Almendarez–Torres v. United States, 523 U.S. 224, 226–27, 118 S.Ct. 1219, 1222–23, 140 L.Ed.2d 350 (1998), the Supreme Court held that the government need not allege in its indictment or prove beyond a reasonable doubt that a defendant had prior convictions in order for a sentencing court to use those convictions for purposes of enhancing a sentence. The Supreme Court reaffirmed that principle in Apprendi v. New Jersey, holding that, “ [o]ther 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.” 530 U.S. 466, 490, 120 S.Ct. 2348, 2362–63, 147 L.Ed.2d 435 (2000) (emphasis added). More recently, the Supreme Court concluded that, in determining whether a prior conviction constitutes a “violent felony” for ACCA purposes, a sentencing court may not look beyond the statutory elements, charging documents, any plea agreements or colloquies, explicit factual findings to which the defendant assented, or some comparable judicial record of this information. Shepard, 544 U.S. at 16, 26, 125 S.Ct. at 1257, 1263.

Since Shepard, we have consistently held that Almendarez–Torres remains good law, and we have explained that, for ACCA purposes, district courts may determine both the existence of prior convictions and the factual nature of those convictions, including whether they were committed on different occasions, so long as they limit themselves to Shepard-approved documents. See United States v. Sneed, 600 F.3d 1326, 1332–33 (11th Cir.2010) (holding that “sentencing courts may look to certain facts underlying [a] prior conviction” in making the “different occasions inquiry,” but must limit themselves to Shepard-approved sources); United States v. Greer, 440 F.3d 1267, 1273–75 (11th Cir.2006) (explaining that Almendarez–Torres remains binding until it is overruled by the Supreme Court and that it permits judges to determine both the existence and factual nature of a prior conviction). We have also expressly rejected the notion that the ACCA's different-occasions determination, unlike the mere fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt. United States v. Spears, 443 F.3d 1358, 1361 (11th Cir.2006).

Contrary to Weeks' contentions, nothing in Nijhawan undermines our prior decisions to the point of abrogation, such that we can disregard them. See Sneed, 600 F.3d at 1332 (explaining that, under the prior precedent rule, “a prior panel's holdingis binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc”). In Nijhawan the Supreme Court considered whether immigration courts could inquire into the underlying facts of an alien's prior fraud conviction for purposes of determining whether the loss to the victims exceeded $10,000 and, thus, constituted an “aggravated felony” under 8...