Case: 15-13691   Date Filed: 10/05/2016   Page: 1 of 3


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13691
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:14-cr-00264-EAK-TGW-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JUSTIN ROBINSON,

                                                         Defendant-Appellant.

                      ________________________

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

                            (October 5, 2016)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
                Case: 15-13691       Date Filed: 10/05/2016      Page: 2 of 3


       Justin Robinson was convicted of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g), and sentenced to 180 months’ imprisonment

pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He now

appeals, raising two constitutional challenges to his ACCA sentence. Reviewing

those challenges de novo, see United States v. Steed, 

, 978 (11th Cir.

2008) (per curiam), we find no error. Accordingly, we affirm.

       First, Robinson argues that his sentence violates the Fifth and Sixth

Amendments because the district court relied on non-elemental facts in

determining that his ACCA-qualifying prior offenses were committed on different

occasions. He claims that, under the Supreme Court’s reasoning in Descamps v.

United States, 570 U.S. ___, 

(2013) and Johnson v. United States,

576 U.S. ___, 

(2015), a sentencing court cannot make a different-

occasions finding based on non-elemental facts, even if those facts are derived

from Shepard 1 documents. However, we have held that sentencing courts may use

Shepard documents to “determine both the existence of prior convictions and the

factual nature of those convictions, including whether they were committed on

different occasions.” United States v. Weeks, 

, 1259 (11th Cir. 2013)




       1
         Shepard v. United States, 

, 16, 

, 1257 (2005) (holding that
sentencing courts can only consider certain documents when determining the factual nature of a
defendant’s prior convictions).
                                               2
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(per curiam). And neither Descamps nor Johnson abrogated that holding, 2 as those

decisions concerned issues distinct from the different-occasions inquiry. See

Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 

, 1292 (11th Cir.

2003) (per curiam) (“While an intervening decision of the Supreme Court can

overrule the decision of a prior panel of our court, the Supreme Court decision

must be clearly on point.”). Therefore, this challenge fails.

       Second, Robinson asserts that his ACCA sentence violates the Fifth and

Sixth Amendments because the fact of his prior convictions was not charged in his

indictment and not proven to the jury beyond a reasonable doubt. But this

argument is foreclosed by Almendarez-Torres v. United States, 

, 

(1998). 3

       AFFIRMED.




       2
          Robinson concedes this point, noting that he presents his Descamps/Johnson argument
for the purpose of appellate preservation and for review by this court en banc or by the Supreme
Court.
        3
          Robinson acknowledges that Almendarez-Torres precludes this claim, but he seeks to
preserve the claim for further review.
                                                3