USA v. Jenord Brown

Filing 920101203

Opinion

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS F O R THE ELEVENTH CIRCUIT FILED _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ U.S. COURT OF APPEALS N o . 09-14868 N o n -A rg u m en t Calendar ________________________
ELEVENTH CIRCUIT DEC 03, 2010 JOHN LEY CLERK

D . C. Docket No. 08-20756-CR-MGC U N IT E D STATES OF AMERICA, Plaintiff-Appellee, versus JENORD BROWN, Defendant-Appellant.

________________________ A p p eal from the United States District Court fo r the Southern District of Florida _________________________ (D ecem b er 3, 2010) B efo re TJOFLAT, EDMONDSON and WILSON, Circuit Judges. P E R CURIAM: D efen d an t-A p p ellan t Jenord Brown appeals his 180-month concurrent sen ten ces after he pleaded guilty to 1) two counts of possession of a firearm and

ammunition by a convicted felon, in violation of 18 U.S.C. sections 922(g)(1) and 9 2 4 (e)(1 ) ("Group 1") and 2) two counts of possession of a controlled substance, in v io latio n of 21 U.S.C. section 844(a) ("Group 2").1 No reversible error has been sh o w n ; we affirm.

I. Background

B ro w n argued before the district court -- and argues again on appeal -- that it w as error to enhance his sentence under 18 U.S.C. section 924(e)(1) because he did n o t have the requisite number of prior convictions for the ACCA to apply. First, h e argues that three of his prior convictions (which he concedes constituted violent felo n ies under the ACCA) should have been considered as only one offense: they to o k place within a nine-day span, were consolidated for sentencing, and were part o f a common scheme or plan. Second, Brown contends that, under the ACCA, one o f his prior convictions should not have counted as a predicate conviction where ad ju d icatio n of guilt had been withheld.

II. Standard of Review

1

Brown does not appeal his sentence for the Group 2 counts. 2

We review questions of statutory interpretation de novo, including whether o ffen ses are "committed on occasions different from one another" for purposes of th e ACCA. United States v. Lee, 208 F.3d 1306, 1307 (11th Cir. 2000).

III. Discussion

T h e district court's sentence is without error. The district court was correct to conclude that Brown possessed the necessary three previous convictions for a v io len t felony. The ACCA provides for a fifteen-year mandatory minimum sen ten ce where a person violates 18 U.S.C. § 922(g) and has three previous co n v ictio n s for a violent felony or a serious drug offense, or both, committed on d ifferen t occasions. See 18 U.S.C. § 924(e). We said in Pope that where "p red icate crimes are successive rather than simultaneous, they constitute separate crim in al episodes for purposes of the ACCA." United States v. Pope, 132 F.3d 6 8 4 , 692 (11th Cir. 1998) (concluding that consecutively burglarizing buildings 2 0 0 yards apart constituted separate crimes for ACCA purposes); see also United S tates v. Lee, 208 F.3d 1306, 1307 (11th Cir. 2000) (looking to whether the d efen d an t possessed a meaningful opportunity to desist activity before committing a later offense).

3

Here, the three predicate crimes relied on by the district court for triggering th e ACCA mandatory-minimum sentence were committed successively and, with reg ard to time, were distinct.2 Committing the crimes over a nine-day span, Brown p o ssessed sufficient opportunity to desist but declined to do so. Brown's arg u m en ts about the crimes constituting a common scheme and about the offenses' co n so lid atio n for sentencing do not alter ACCA's clear statutory requirement. See 1 8 U.S.C. § 924(e)(1) (requiring prior convictions arising from offenses "co m m itted on occasions different from one another"). We reject Brown's argument that the conviction for which he never received a guilty adjudication should not count. See United States v. Santiago, 601 F.3d 1 2 4 1 , 1242 (11th Cir. 2010) (concluding that "a guilty plea followed by a sentence o f probation and a withholding of adjudication qualifies under Florida law as a p red icate conviction for the purpose of enhancing a defendant's sentence under the A C C A "). A F F IR M E D .

Defendant does not contest that the three crimes qualified as "violent felon[ies]" under section 924(e)(1). 4

2