Argued September 11, 2013
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-11-cr-00108-001) District Judge: Honorable David S. Cercone
Akin Adepoju, Esq. Renee Pietropaolo, Esq. [ARGUED] Office of the Federal Public DefenderCounsel for Appellant.
Rebecca R. Haywood, Esq. Laura S. Irwin, Esq. [ARGUED] Office of United States Attorney Counsel for Appellee.
Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges.
JORDAN, Circuit Judge.
Conrad Clinton Blair appeals a sentence imposed by the United States District Court for the Western District of Pennsylvania. His appeal implicates a sentencing enhancement under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and, in particular, presents the question of what are prior convictions for "violent felon[ies] … committed on occasions different from one another… ." Because we conclude that Blair has at least three prior convictions for felonies committed on separate occasions, we will affirm.
In 2011, Blair participated in the sale of guns, even though his criminal past rendered him a person prohibited by federal law from possessing a firearm. After his arrest, he pled guilty to two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (making it "unlawful for any person … who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year … to … possess … any firearm").
A presentence investigation report ("PSR") recommended that Blair be sentenced under ACCA, which mandates a minimum 15-year prison sentence for anyone possessing a firearm after "three previous convictions … for a … violent felony … committed on occasions different from one another." 18 U.S.C. § 924(e). Blair had pled guilty in Pennsylvania state court on September 14, 1987, to one count of third-degree robbery in the form of "physically tak[ing] or remov[ing] property from the person of another by force however slight, " in violation of 18 Pa. Cons. Stat. Ann. § 3701(a)(1)(v), and to one count of armed burglary, in violation of 18 Pa. Cons. Stat. Ann. § 3502. On May 6, 1991, he had again pled guilty,  this time to four counts of first-degree robbery in violation of 18 Pa. Cons. Stat. Ann. § 3701. The charging documents accompanying the 1991 robbery convictions list the counts charged and, for each count, state that the "[f]elony committed or threatened" was "[a]ggravated [a]ssault." (App. at 137, 154, 171, 192.) The PSR recommended that each of the 1991 robbery counts be treated as a separate criminal episode committed on a separate occasion. The PSR thus calculated that, for purposes of ACCA, Blair had six prior convictions, which made him subject to the mandatory minimum sentence provided in that statute. Because the advisory Guidelines range fell below the mandatory minimum, that minimum of 15 years (180 months) became the recommended sentence.
Blair contested the applicability of ACCA, specifically arguing as to his 1987 convictions that the burglary conviction was not for the generic offense of burglary required under ACCA and that robbery by force however slight is not a violent felony under ACCA. Of most pertinence for this appeal, he also argued that his 1991 robbery convictions qualified as, at most, one violent felony under ACCA, because they were entered on the same day and the charging documents did not conclusively establish that the crimes were "committed on occasions different from one another." The District Court reviewed Blair's prior convictions and his objections and determined that his 1987 robbery and burglary convictions were for violent felonies. The Court also held that Blair's four 1991 robbery convictions "at a minimum" established three separate violent felonies under ACCA. (App. at 18.) "Giving [Blair] the benefit of the doubt, " the District Court did not count two of the convictions separately because those two robberies were committed on the same day. (Id.) It thus held that Blair had "no fewer" than five predicate violent felonies under ACCA, i.e., two 1987 convictions and three 1991 convictions, and so applied the ACCA mandatory minimum. (App. at 18-19.) After the District Court sentenced Blair to 180 months in prison and three years of supervised release, this timely appeal followed.
Blair continues to maintain that his 1987 Pennsylvania convictions for burglary and robbery do not qualify as ACCA predicates because they are not categorically violent felonies. He also again argues that his 1991 robbery convictions cannot be considered to have been "committed on occasions different from one another, " 18 U.S.C. § 924(e)(1), because he pled guilty to those charges on the same day. He has, in addition, advanced a new argument based on the Supreme Court's recent holding in Descamps v. United States, 133 S.Ct. 2276 (2013), a case which clarifies the analytical approach that sentencing courts must use to determine if a prior conviction is a predicate offense under ACCA. Blair now contends that his 1991 robbery convictions are not categorically violent felonies under ACCA. Moreover, he says that the Supreme Court's recent decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), holding that facts that increase a mandatory minimum sentence must be submitted to a jury, bears on our analysis. While he does not expressly argue that he was entitled to a jury determination under Alleyne with respect to the predicate offenses for his mandatory minimum sentence, he does imply that Alleyne should guide our decision.
We conclude that at least three of Blair's 1991 robbery convictions qualify under ACCA as violent felonies committed on separate occasions. As a result, his 1991 robbery convictions alone qualify him for the ACCA enhancement, and we will affirm the District Court's application of that enhancement without considering Blair's 1987 robbery or burglary convictions. See United States v. Berrios, 676 F.3d 118, ...