Case: 12-11104     Date Filed: 01/31/2013   Page: 1 of 15



                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-11104
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 3:11-cr-00065-HES-JBT-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                       versus

TIMOTHY ALLEN WEEKS,

                                                              Defendant-Appellant.
                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________
                               (January 31, 2013)

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
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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 specifically 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.

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      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, 

, 

 (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

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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 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:

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       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,

, 

 (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, 

, 948 (11th Cir. 2005). Under the

       1
         Weeks also maintains, for purposes of preservation only, that the district court lacked
the authority to impose an enhanced sentence under the ACCA because he did not admit to the
existence of his predicate offenses when he pleaded guilty to the felon-in-possession charge.
Weeks acknowledges, however, that this argument is foreclosed by still-binding Supreme Court
precedent. See Almendarez-Torres v. United States, 

, 226–27, 

,
1222–23 (1998) (recognizing that the “fact of an earlier conviction” may be constitutionally
determined by a judge). We therefore decline to address this issue.
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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, 

, 226–27, 

, 1222–23 (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

this 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.” 

, 490, 

, 2362–63 (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, 543 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

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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, 

, 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, 

, 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, 

, 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

holding is 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

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purposes of determining whether the loss to the victims exceeded $10,000 and,

thus, constituted an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii). 557

U.S. at 32–34, 129 S.Ct. at 2297–99. The Supreme Court held that the loss

determination called for a “circumstance-specific approach,” unlike the

“categorical” or “modified categorical” approach for assessing whether a prior

conviction qualifies as a “violent felony” under the ACCA, and that an

immigration court could therefore consider the circumstances surrounding the prior

conviction without limiting its inquiry to Shepard documents. Id. at 34–43, 129

S.Ct. at 2299–2303. During its discussion, the Supreme Court also noted the

alien’s argument that a circumstance-specific approach “could create potential

constitutional problems in a subsequent criminal prosecution” under 8 U.S.C. §

1326, which criminalizes illegal reentry after removal and imposes a higher

maximum sentence when an alien’s removal followed a conviction for an

aggravated felony. Id. at 40, 129 S.Ct. at 2302. Without much discussion, the

Court stated that “any constitutional concern” was eliminated by the government’s

concession that a jury would have to find the loss amount beyond a reasonable

doubt at a later trial for illegal reentry. Id.

       At most, Nijhawan merely implies that an immigration court’s findings may

not provide a constitutional basis for later sentencing enhancements if they are not

appropriately limited to Shepard sources. Because Nijhawan does not even

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suggest that circumstance-specific determinations made for ACCA purposes must

be proven to a jury beyond a reasonable doubt, we are bound by our prior holdings

that district courts may determine the factual nature of prior convictions, including

whether they were committed on different occasions, so long as they limit

themselves to Shepard-approved sources. See United States v. Kaley, 

, 1253 (11th Cir. 2009) (explaining that, to constitute an “overruling” for

purposes of the prior precedent rule, the Supreme Court decision “must be clearly

on point” and “actually abrogate or directly conflict with, as opposed to merely

weaken, the holding of the prior panel”).

      Accordingly, the district court had the authority to apply the ACCA

enhancement based on its own factual findings.

                                         III.

      Weeks alternatively contends that, even if sentencing courts may

permissibly find that a defendant’s prior convictions were committed on different

occasions, the district court erred in doing so because the Shepard-approved

documents presented by the government were insufficient to support such a

finding. Weeks maintains that, because the government did not introduce the

charging document to establish the timing of his aggravated battery offense, there

was no basis upon which the district court could find that the offense was

committed on a separate occasion from his burglary convictions. As to the

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burglary convictions, Weeks first contends that the district court could not rely on

the dates in the charging documents—November 27, 1997, and December 2,

1997—because the date of a crime is not an element of the offense. He also argues

that the mere fact that two different structures were involved in the December 2

burglaries is not determinative of the different-occasions inquiry. And for the first

time on appeal, he maintains that he could have pleaded guilty to one count of

burglary based solely on the conduct of his two accomplices, making it impossible

to determine whether he himself burglarized more than one structure or whether

the burglaries were committed successively.

      We review de novo whether crimes were committed on different occasions

within the meaning of the ACCA. United States v. Canty, 

, 1254–55

(11th Cir. 2009). However, we review specific objections or arguments not raised

in the district court only for plain error. United States v. Massey, 

,

819 (11th Cir. 2006) (holding that specific objections to a sentence must be clearly

raised before the district court in order to be properly preserved for appeal, and that

a defendant “fails to preserve a legal issue for appeal if the factual predicates of an

objection are included in the sentencing record, but were presented to the district

court under a different legal theory”).

      To satisfy the ACCA’s different-occasions requirement, a defendant must

have at least three prior convictions for crimes “that are temporally distinct.”

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Sneed, 600 F.3d at 1329 (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.” United States v. Pope, 

, 692

(11th Cir. 1998). “Distinctions in time and place are usually sufficient to separate

criminal episodes from one another even when the gaps are small,” and two

offenses are considered distinct if “some temporal ‘break’ occurs between [them].”

Id. at 690.

      Weeks has not demonstrated that the district court erred in determining that

his three burglary offenses were committed on different occasions. The charging

documents, which indicated that one of the burglary offenses was committed five

days before the other offenses, were sufficient to establish that one of those

offenses was temporally distinct for ACCA purposes. See United States v. Turner,

, 572 (11th Cir. 2010) (noting that sentencing enhancements need

only be established by a preponderance of the evidence). Moreover, the charging

documents showed that the burglaries involved three separate structures and

victims, which adequately supports the district court’s determination that they each

constitute separate criminal episodes. The fact that the December 2 burglaries

occurred within close proximity to one another is not determinative, as even small

gaps in time and place are sufficient to establish separate offenses. See Pope, 132

F.3d at 692 (holding that the burglary of two offices separated by 200 yards, and

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committed in immediate succession, qualified as separate offenses under the

ACCA); United States v. Proch, 

, 1265–66 (11th Cir. 2011) (holding

that two burglary offenses “committed on the same day at separate addresses on

the same street” constituted separate and distinct criminal episodes).

      Although Weeks now contends that, on December 2, 1997, he could have

remained in one of the burglarized buildings while his two accomplices

simultaneously burglarized the other, he did not make that argument before the

district court. To the contrary, he merely argued that he could not have formulated

a separate intent to burglarize the second location in the 13 seconds that it would

have taken him to walk the 56 feet between the two buildings. We therefore

review his current argument only for plain error. See Massey, 443 F.3d at 819.

Generally, there “can be no plain error where there is no precedent from the

Supreme Court or this Court directly resolving [an issue].” United States v.

Castro, 

, 1253 (11th Cir. 2006). Weeks fails to identify any binding

precedent from this Court or the Supreme Court holding that a different-occasions

determination cannot be made where a charging document, though listing separate

offense locations, fails to specify whether all of the named defendants participated

as principals in each offense. It is also noteworthy that the charging document for

the December 2 burglaries alleges that Weeks and his cohorts unlawfully entered

both buildings, and nowhere indicates that Weeks merely participated as an

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accomplice in one of the burglaries. Under the circumstances, Weeks has not

shown that the district court plainly erred in concluding that he physically

participated in both of the December 2 burglaries and that, as a result, they were

successive rather than simultaneous. As we have said in a related context, the

“ACCA does not require metaphysical certainty” and “courts should not refuse to

apply it because of divorced-from-reality, law-school-professor-type hypotheticals

that bear no resemblance to what actually goes on.” United States v. Rainer, 

, 1216 (11th Cir. 2010) (quotation marks omitted).

      Because Weeks has not demonstrated that the district court erred in

classifying his three burglary convictions as separate predicate offenses under the

ACCA, we need not consider whether Weeks’ conviction for aggravated battery

can serve as a fourth qualifying offense.

                                            IV.

      As a final argument, Weeks contends that his three burglary convictions

cannot serve to enhance his sentence because the residual clause of the ACCA,

which defines a “violent felony” as any offense that “otherwise involves conduct

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

unconstitutionally vague. See 18 U.S.C. § 924(e)(2)(B)(ii). The argument is

unavailing for two distinct reasons. First, the Supreme Court has twice expressed

the view that the residual clause of the ACCA is not unconstitutionally vague,

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which effectively forecloses us from adopting a contrary conclusion. See James v.

United States, 

, 210 n.6, 

, 1598 n.6 (2007) (rejecting

the view that the residual clause is unconstitutionally vague because it “is not so

indefinite as to prevent an ordinary person from understanding what conduct it

prohibits”); Sykes v. United States, 564 U.S. –, 

, 2277 (2011)

(stating the residual clause “states an intelligible principle and provides guidance

that allows a person to conform his or her conduct to the law”) (internal quotation

marks omitted); see also United States v. Chitwood, 

, 978 n.3 (11th

Cir. 2012) (stating that the Supreme Court’s position “appears to foreclose a

conclusion, at least by a lower court such as our own, that the residual clause is

unconstitutionally vague”).

      Second, Weeks’ contention rests on the erroneous view that a prior

conviction under Florida’s burglary statute, Fla. Stat. § 810.02, can qualify as a

“violent felony” only under the ACCA’s residual clause, and never under its

enumerated-offenses clause. The ACCA defines a “violent felony” as, among

other things, an offense 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.” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). The

Supreme Court has adopted the generic meaning of “burglary” for purposes of the

ACCA, holding that a burglary conviction satisfies the enumerated-offenses clause

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if it includes “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). Although

Florida’s burglary statute facially encompasses both generic and non-generic

burglaries, a conviction under the statute can still qualify as a generic burglary if

the charging documents or other Shepard-approved sources show that the offense

involved unlawful entry into a building or structure. See United States v.

Matthews, 

, 1274–75 (11th Cir. 2006); see also United States v.

Rainer, 

, 1215 (11th Cir. 2010) (explaining that “a conviction under

a non-generic burglary statute” still qualifies as a violent felony under the ACCA’s

enumerated-offenses clause “if the indictment shows that the defendant was

charged only with a burglary of a building”) (quotation marks, alterations, and

ellipsis omitted). Because the charging documents show that Weeks was charged

with unlawfully entering into three separate buildings with intent to commit a

crime, his convictions qualify as generic burglaries under the ACCA’s enumerated-

offenses clause and, thus, we do not even have to apply the residual clause.

      For these reasons, we affirm Weeks’ mandatory minimum sentence under

the ACCA.

      AFFIRMED.




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