Case: 13-15103   Date Filed: 09/16/2014   Page: 1 of 14


                                                                  [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15103
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:12-cr-00114-JES-UAM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

DANIEL CHARLES KIRK,

                                                          Defendant-Appellant.

                       ________________________

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

                            (September 16, 2014)

Before HULL, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
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      Daniel Charles Kirk appeals his conviction and fifteen-year sentence for

being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C.

§ 922(g)(1). On appeal, Kirk argues that the district court erred in applying the

fifteen-year mandatory minimum sentence under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e)(1), for two reasons. First, he argues that his prior

burglary offenses do not qualify as “violent felonies” under the ACCA. Second, he

argues that the government did not show that the burglaries were “committed on

occasions different from one another” as required by the ACCA. As to his

conviction, he argues that the Constitution requires the government to prove that a

firearm or ammunition “substantially affected” interstate commerce before its

possession can be punished under § 922(g).

      We address each of his arguments in turn, and after careful consideration,

we affirm his conviction and sentence.

                                         I.

      Kirk’s first argument on appeal is that his prior burglary offenses do not

qualify as violent felonies under the ACCA. We consider de novo whether a

particular conviction qualifies as a violent felony for purposes of the ACCA.

United States v. Matthews, 

, 1273 (11th Cir. 2006).

      Under the Sentencing Guidelines, defendants who are subject to enhanced

sentences under 18 U.S.C. § 924(e) are considered armed career criminals. See


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U.S. Sentencing Guidelines Manual § 4B1.4(a). The ACCA mandates a fifteen-

year minimum term of imprisonment for defendants who violate § 922(g) and have

three previous convictions for “violent felon[ies] . . . committed on occasions

different from one another.” 18 U.S.C. § 924(e)(1). The ACCA defines “violent

felony” as “any crime punishable by imprisonment for a term exceeding one year

. . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical injury to

another.” 

       The ACCA’s inclusion of convictions for crimes that “otherwise involve[]

conduct that presents a serious potential risk of physical injury to another” is

known as the statute’s “residual clause.” 1 Id.; see United States v. Weeks, 

, 1262 (11th Cir.), cert. denied, 

(2013). The Supreme

Court requires courts to use a “categorical approach” and a “comparative inquiry”

to determine whether a crime qualifies as a violent felony under the ACCA’s




       1
                Because Kirk and the government agree that Florida’s definition of burglary is
broader that the definition of generic burglary and that the enumerated offenses clause does not
apply to Kirk’s case, we only consider whether Kirk’s prior convictions fall within the residual
clause of the ACCA. See, e.g., 

(“The district court did not decide
whether burglary of the curtilage of a structure is a ‘generic burglary’ as discussed in Taylor[v.
United States, 

, 599, 

, 2158 (1990)]. Given our holding that
burglary of the curtilage of a structure (as defined by Florida law) ‘otherwise involves conduct
that presents a serious potential risk of physical injury to another,’ we need not express an
opinion on whether the offenses in question here are ‘generic burglaries’ as discussed in
Taylor.”).
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residual clause. United States v. Petite, 

, 1294 (11th Cir.), cert.

denied, 

(2013).

       Using the categorical approach, the central inquiry is whether the
       offense presents a serious potential risk of physical injury to another
       comparable to the risk posed by the ACCA’s enumerated crimes. . . .
       [A] crime involves the requisite risk when the risk posed by [the crime
       in question] is comparable to that posed by its closest analog among
       the enumerated offenses.

in original) (citations and internal quotation marks omitted).

       The Florida burglary statute under which Kirk was convicted prior to his

§ 922(g) offense defines burglary as:

       1.      Entering a dwelling, a structure, or a conveyance with the intent
               to commit an offense therein, unless the premises are at the time
               open to the public or the defendant is licensed or invited to
               enter; or
       2.      Notwithstanding a licensed or invited entry, remaining in a
               dwelling, structure, or conveyance:
                      a.    Surreptitiously, with the intent to commit an
                            offense therein;
                      b.    After permission to remain therein has been
                            withdrawn, with the intent to commit an offense
                            therein; or
                      c.    To commit or attempt to commit a forcible felony,
                            as defined in s. 776.08.

Fla. Stat. § 810.02(1)(b).

       Kirk argues that because it is unclear whether his prior convictions under the

Florida statute were based on his “entering” or “remaining in” a dwelling, 2 this


       2
                Each criminal information regarding Kirk’s prior convictions reads that on a
particular date, Kirk “did unlawfully enter or remain in a certain structure, to-wit: a dwelling”
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Court must presume that they were based on his remaining in a dwelling, which he

argues presents less of a risk of physical injury than generic “unlawful entry”

burglary and consequently cannot qualify as violent felonies under the ACCA.

However, the Supreme Court has held that “a person has been convicted of

burglary for purposes of a § 924(e) enhancement if he is convicted of any crime,

regardless of its exact definition or label, having the basic elements of unlawful or

unprivileged entry into, or remaining in, a building or structure, with intent to

commit a crime.” Taylor v. United States, 

, 599, 

,

2158 (1990) (emphasis added). The Court has recognized the risks posed by such

conduct: “The main risk of burglary arises not from the simple physical act of

wrongfully entering onto another’s property, but rather from the possibility of a

face-to-face confrontation between the burglar and a third party—whether an

occupant, a police officer, or a bystander—who comes to investigate.” James v.

United States, 

, 203, 

, 1594 (2007). The Supreme

Court commented on these risks in the context of considering whether attempted

burglary under Florida law, with burglary being defined by the previous version of

§ 810.02, constitutes a violent felony for purposes of the ACCA. See 

–91. The definition of burglary under Florida law at the




located at a particular address, “with the intent to commit an offense therein, to-wit: Theft,
contrary to Florida Statute 810.02.”
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time was “entering or remaining in a structure or a conveyance with the intent to

commit an offense therein, unless the premises are at the time open to the public or

the defendant is licensed or invited to enter or remain.” 

127 S. Ct. at

1591 (emphasis added). Thus, the Court was considering a statute with a

“remaining in” element at the time it explained the risks of physical injury

associated with burglary as defined under Florida law, and the Court found that

attempted burglary fell within the ACCA’s residual clause as a violent felony

involving conduct that presents a serious risk of physical injury to another. 

127 S. Ct. at 1590. We therefore have no doubt that “remaining in” burglary

involves the same significant risks of physical injury to another.

      Furthermore, we have previously held that a conviction under the earlier

version of § 810.02, which included a “remaining in” element, was a conviction for

a violent felony under the ACCA’s residual clause. See 

(holding that, in the context of a conviction for burglary based on entry into

the roofed portion or curtilage of a structure, “even if [the defendant]’s third-

degree burglary convictions [were] not convictions for ‘generic burglary,’ they

[were] convictions for violent crimes under the ACCA because they satisf[ied]

th[e] alternative definition” under the residual clause). Although Florida’s




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definition of burglary encompasses the curtilage of a structure and is therefore

broader than the definition of generic burglary, 3 we explained in Matthews:

       Regardless of whether a burglar breaches the roofed portion of a
       structure, his unlicensed entry into the enclosed area surrounding that
       structure may bring him into close physical proximity with the same
       persons he might encounter were he to enter the structure. He may
       come into contact with the property’s owners, occupants, or
       caretakers. His close physical presence to the structure could lead an
       innocent person to investigate why he is there, and his presence alone
       could reasonably be perceived by any of these persons as threatening.
       Either the innocent or the burglar might react violently. In short, the
       burglar’s presence in the curtilage of the structure presents a serious
       potential risk that violence will ensue and someone will be injured.

held that burglary under the prior version of § 810.02 qualified as a

violent felony under the ACCA’s residual clause even though it was unclear from

the record there whether the defendant had entered into the roofed portion or the

curtilage of the structures at issue. 

that this precedent is not applicable to his case because we did

not consider the “remaining in” portion of the statute in Matthews. However, the

Supreme Court in James expressed nearly identical concerns about potential
       3
                 In conducting an ACCA analysis, sentencing courts are bound to follow any state
court decisions that define or interpret the statute’s substantive elements. See Johnson v. United
States, 

, 138, 

, 1269 (2010) (noting that federal courts are bound by
a state supreme court’s interpretation of state law, including its determination of the elements of
a state statute, in determining whether an offense constitutes a violent felony under the ACCA).
In addressing the state’s burglary statute, the Florida Supreme Court has held: “There is no crime
denominated burglary of a curtilage; the curtilage is not a separate location wherein a burglary
can occur. Rather, it is an integral part of the structure or dwelling that it surrounds. Entry onto
the curtilage is, for the purposes of the burglary statute, entry into the structure or dwelling.”
Baker v. State, 

, 1344 (Fla. 1994). “[T]he inclusion of curtilage takes Florida’s
underlying offense of burglary outside the definition of ‘generic burglary’ set forth in Taylor . . .
.” 

, 127 S. Ct. at 1599.
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violence when considering attempted burglary based on the earlier version of

§ 810.02, which defined burglary as “entering or remaining in a structure or a

conveyance with the intent to commit an offense therein.” See 

, 

, 1594–95. Accordingly, we think the same risks as

explained in Matthews and James are present in the context of “remaining in”

burglary. In sum, we find that Kirk’s prior burglary convictions qualify as violent

felonies under the ACCA’s residual clause regardless of whether they were based

on his “entering” or “remaining in” the dwellings at issue because either type of

offense “involves conduct that presents a serious potential risk of physical injury to

another.” 18 U.S.C. § 924(e)(2)(B)(ii).

                                          II.

      Kirk’s second argument on appeal is that the government did not prove that

his prior convictions were for offenses “committed on occasions different from one

another” as required for the ACCA mandatory minimum to apply. “Whether prior

convictions meet the ACCA’s separate offenses requirement is a legal

determination we review de novo.” United States v. Sneed, 

, 1330

n.5 (citing United States v. Pope, 

, 689 (11th Cir. 1998)).

      A defendant is subject to the ACCA enhancement only if he has three prior

convictions for qualifying offenses “committed on occasions different from one

another.” 18 U.S.C. § 924(e)(1). This requirement means that the defendant’s


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prior convictions must have resulted from crimes that are “temporally distinct” and

arise out of “separate and distinct criminal episode[s].” 

(internal quotation marks omitted). “‘[S]o long as [the] predicate crimes are

successive rather than simultaneous, they constitute separate criminal episodes for

purposes of the ACCA.’” 

(alterations in original)

(quoting 

). “Distinctions in time and place are usually

sufficient to separate criminal episodes from one another even when the gaps are

small.” 

(internal quotation marks omitted); see also

(holding that the defendant failed to establish that the

district court erred in classifying his three burglary convictions as separate ACCA

predicate offenses even though two of the burglaries occurred on the same date and

in close proximity to each other because “even small gaps in time and place are

sufficient to establish separate offenses”); United States v. Proch, 

,

1265–66 (11th Cir. 2011) (holding that two burglaries committed on the same day

at different addresses on the same street constituted separate and distinct criminal

episodes).

      We have held that the government must prove that prior offenses occurred

on different occasions using only Shepard documents. See 

–33 (holding that police reports may not be used for ACCA inquiries and

vacating the defendant’s § 924(e)-enhanced sentence because the government had


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failed to produce any Shepard-approved documents establishing that the

defendant’s prior offenses occurred on different occasions); 

(“[F]or 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.”).

       In this case, the charging documents submitted by the government show that

Kirk pled guilty to burglarizing seven different dwellings, located at seven

different addresses and owned by seven different people, on or about three separate

dates—May 5, August 16, and August 19, 2002. The government therefore used

Shepard-approved documents to prove that Kirk’s prior offenses arose from

separate and distinct criminal episodes that were temporally distinct in that they

were committed on at least three different dates. See 

;

–66. Accordingly, Kirk has failed to show that the district

court erred in concluding that his prior convictions were for offenses “committed

on occasions different from one another.”

                                         III.

      Kirk’s final argument on appeal is that the district court erred in denying his

motion for a judgment of acquittal because the government failed to prove that the

firearm and ammunition in his possession “substantially affected” interstate


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commerce. Kirk also argues that § 922(g) is an unconstitutional exercise of

Congress’s Commerce Clause power as applied to purely intrastate conduct, such

as mere possession of a firearm, under United States v. Lopez, 

, 

(1995). Kirk concedes that these arguments are foreclosed by

“Eleventh Circuit precedent directly to the contrary,” but he presents the arguments

“in order to preserve the issue for further review.”

      It is unlawful for a convicted felon to “possess in or affecting commerce,

any firearm or ammunition.” 18 U.S.C. § 922(g)(1). The Supreme Court, in

considering the predecessor statute to § 922(g), held that the interstate commerce

element is met by demonstrating a “minimal nexus that the firearm have been, at

some time, in interstate commerce.” Scarborough v. United States, 

,

575, 

, 1969 (1977). In Lopez, the Supreme Court held that gun

control legislation related to the possession of firearms in school zones was an

invalid exercise of Congress’s Commerce Clause power partly because the statute

could not be sustained under the reasoning that the regulated activities, in the

aggregate, substantially affected interstate commerce. See 

,

115 S. Ct. at 1631. In addition, the Supreme Court emphasized that the challenged

statute “contain[ed] no jurisdictional element which would ensure, through case-

by-case inquiry, that the firearm possession in question affect[ed] interstate

commerce.” 

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      Since Lopez, we have continually held that § 922(g) is not a facially

unconstitutional exercise of Congress’s Commerce Clause power because unlike

the statute at issue in Lopez, § 922(g) contains a jurisdictional requirement. See,

e.g., United States v. Jordan, 

, 1189 (11th Cir. 2011) (“We have

repeatedly held that Section 922(g)(1) is not a facially unconstitutional exercise of

Congress’s power under the Commerce Clause because it contains an express

jurisdictional requirement.”); United States v. Scott, 

, 1273 (11th

Cir. 2001) (reaffirming the holding that “the jurisdictional element of the statute,

i.e., the requirement that the felon ‘possess in or affecting commerce, any firearm

or ammunition,’ immunizes § 922(g)(1) from [a] facial constitutional attack”);

United States v. Dupree, 

, 1260 (11th Cir. 2001) (upholding the

conclusion that “the jurisdictional element of § 922(g) brings it within the

commerce powers of the Congress”); United States v. McAllister, 

,

389–90 (11th Cir. 1996) (holding that the jurisdictional element of § 922(g) defeats

a facial challenge to the statute even after the Supreme Court’s decision in Lopez).

      Moreover, we have also held that § 922(g) is not unconstitutional as applied

to a defendant who merely possessed a firearm within state lines so long as the

government introduces sufficient evidence showing that the firearm has a minimal

nexus to interstate commerce, i.e., that the firearm was manufactured, assembled,

or sold outside the state or that it travelled in interstate commerce. See, e.g.,


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(holding that § 922(g) was not unconstitutional “as

applied to a defendant who possessed a firearm only intrastate” because the

government showed that the firearm involved was manufactured and assembled

outside the state); 

(holding that § 922(g) requires only a

minimal nexus to interstate commerce and that the defendant’s actions of

brandishing in Georgia a firearm that was manufactured in California satisfied the

jurisdictional requirement of § 922(g)); 

(holding that

even in the wake of Lopez, § 922(g) is constitutional as applied to a defendant who

merely possessed a firearm within state lines so long as the firearm has a minimal

nexus to interstate commerce, an element that was satisfied in that case because the

firearm possessed by the defendant had travelled in interstate commerce).

      Here, the government produced evidence that the firearm and ammunition

Kirk possessed in Florida were manufactured outside the state and therefore had

necessarily traveled in interstate commerce. Given our undisturbed precedent,

such evidence was sufficient to demonstrate the minimal nexus between the

firearm and ammunition Kirk possessed and interstate commerce. Therefore, the

jurisdictional element of § 922(g) was satisfied, and the statute is not

unconstitutional as applied to Kirk’s conduct. Accordingly, the district court did

not err in denying Kirk’s motion for a judgment of acquittal, and Kirk’s conviction

and sentence are


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AFFIRMED.




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