Case: 12-15401   Date Filed: 07/02/2013   Page: 1 of 5


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15401
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:11-cr-20877-MGC-1



UNITED STATES OF AMERICA,


                                                           Plaintiff - Appellee,

                                   versus

LAZARO GINEBRA-VERA,
a.k.a. Lazaro Ginebra,

                                                       Defendant - Appellant.

                       ________________________

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

                               (July 2, 2013)

Before TJOFLAT, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
              Case: 12-15401      Date Filed: 07/02/2013   Page: 2 of 5


      Lazaro Ginebra-Vera appeals his sentence of 188-months imprisonment and

3 years of supervised release, arguing that the district court erred in enhancing his

sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He

contends that the district court did not have enough evidence to conclude that two

of his three prior convictions were from “separate and distinct criminal episodes.”

See United States v. Pope, 

, 689 (11th Cir. 1998) (A defendant may

only be subject to an ACCA enhancement “if each of the three previous

convictions arose out of a separate and distinct ‘criminal episode’”). Ginebra-Vera

also claims that the district court erred in using his previous conviction for

conspiracy to traffic cocaine as a predicate offense, because under Florida law, we

may not assume that the purchase of a large amount of drugs “necessarily give[s]

rise to . . . possession.” United States v. Shannon, 

, 1189 (11th Cir.

2011). The government responds that Ginebra-Vera’s two prior convictions were

separate and distinct because they occurred on different dates and involved

different victims, and that this Court has held that Ginebra-Vera’s Florida drug

crime is a predicate offense under § 924(e).

                                        I.

        “[W]hether crimes were committed on occasions different from one

another, within the meaning of the ACCA” is a question of law that we review de

novo. United States v. Canty, 

, 1254–55 (11th Cir. 2009) (quotation


                                             2
                Case: 12-15401        Date Filed: 07/02/2013       Page: 3 of 5


marks omitted). The government bears the burden of showing that “the three

previous convictions arose out of a separate and distinct criminal episode.” United

States v. Sneed, 

, 1329 (11th Cir. 2010) (quotation marks omitted).

       “Two offenses are distinct if some temporal break occurs between them.”

Id. at 1330 (quotation marks and alterations omitted). Here, the government

presented evidence that the crimes occurred on different dates. The government

gave the sentencing court the Judgment of Conviction and the Information for each

of the two crimes at issue. The Information for the first conviction—one count of

robbery with a pistol, and one count of unlawful possession of a firearm while

engaged in a criminal offense (Conviction One)—shows that the offense occurred

on March 24, 1981. The Information for the second conviction—one count of

second degree attempted murder, one count of robbery, and one count of unlawful

possession of a firearm while engaged in a felony offense (Conviction Two)—

shows that the offense occurred on March 30, 1981. 1 The Informations also

showed that the two offenses involved at least two different victims.

       The district judge properly relied on the Informations in determining that the

crimes occurred on different dates, and thus were separate and distinct crimes. See

Shepard v. United States, 

, 26, 

, 1263 (2005) (A
1
  It does not matter for the purposes of § 924(e) that Ginebra-Vera pled guilty to Convictions
One and Two on the same day. United States v. Wilks, 

, 1244 (11th Cir. 2006)
(“[T]he language of § 924(e)(1) requires only that the prior felonies or offenses be ‘committed
on occasions different from one another,’ not that the convictions be obtained on separate
occasions.”).
                                                3
               Case: 12-15401     Date Filed: 07/02/2013     Page: 4 of 5


sentencing judge may consider “the terms of the charging document” in deciding

whether a crime is a predicate offense under § 924(e).). The evidence in the

Information for each offense was sufficient for the sentencing judge to determine

that the predicate offenses at issue were “separate and distinct.”

                                         II.

      In his plea agreement, Ginebra-Vera pled guilty to § 924(e) and agreed that

his Florida drug conviction was one of his three previous felonies. At the plea

colloquy, Ginebra-Vera said he understood the terms of the plea agreement,

including that “his three prior felony convictions . . . qualify as either violent

felonies or serious drug offenses,” qualifying him for ACCA status. Ginebra-Vera

did not object to the treatment of the Florida drug conviction as a predicate offense

either in his objections to the presentence report (PSI), or in his sentencing

memorandum. At the sentencing hearing, Ginebra-Vera did not object to, or even

mention, the treatment of the Florida drug crime as a predicate offense. Nor did he

object to the facts of this prior conviction as detailed in the PSI. Thus, after

agreeing that the crime counted as an ACCA predicate offense, Ginebra-Vera did

not argue before the district court that the crime should not be a predicate offense,

despite having several opportunities to do so.

      Because Ginebra-Vera expressly acknowledged through his plea agreement

and plea colloquy that the Florida drug offense is a predicate offense, and he did


                                               4
              Case: 12-15401     Date Filed: 07/02/2013    Page: 5 of 5


not challenge this before the district court, he invited any error that he now claims

exists. United States v. Love, 

, 1157 (11th Cir. 2006). Thus, he is

precluded from claiming that the court erred in treating his Florida drug offense as

a predicate offense under § 924(e). Id.

                                           III.

      For these reasons, Ginebra-Vera’s sentence is AFFIRMED.




                                          5