                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 22, 2016
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 15-7037
 v.                                           (D.C. No. 6:13-CR-00093-RAW-1)
                                                         (E.D. Okla.)
 MICHAEL WAYNE CHERRY,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.


      Defendant-Appellant Michael Wayne Cherry appeals from the district

court’s determination that his prior felony convictions qualify as three predicate

violent felonies under the Armed Career Criminal Act (ACCA), 18 U.S.C.

§ 924(e). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                   Background

      In 2014, Mr. Cherry was convicted of being a felon in possession of a

firearm. 18 U.S.C. § 922(g)(1). According to the presentence report (PSR), Mr.

Cherry was eligible for sentencing under the ACCA, which authorizes an

enhanced penalty for a person who violates § 922(g) and has three previous

convictions for crimes that meet the definition of a “violent felony” that were

“committed on occasions different from one another.” Id. § 924(e)(1). Mr.

Cherry’s three prior convictions were: (1) robbery by force and fear, Muskogee

County Case No. CRF-1993-9 (two counts); (2) assault with a dangerous weapon,

Muskogee County Case No. CRF-1993-8; (3) assault and battery with a dangerous

weapon, Muskogee County Case No. CRF-1997-345. See 3 R. 6–8.

      Mr. Cherry objected, arguing that his robbery conviction was not a violent

felony and that all his criminal convictions in 1993 stemmed from the same

course of conduct and should only count as one predicate conviction under the

ACCA. See id. at 36–56. The district court overruled the objections, finding that

Mr. Cherry’s three prior convictions were violent felonies committed on different

occasions. Specifically, the court noted the robbery conviction was a violent

felony, because it satisfied “both prongs” of the ACCA, qualifying as a predicate

offense under § 924(e)(2)(B)(I) (the “force clause”) and § 924(e)(2)(B)(ii) (the

“residual clause”). 2 R. 21–22. The court also found that the robbery and the

assault that Mr. Cherry committed in 1993 were separate and distinct because

                                       -2-
they targeted different victims and occurred on different days. See id. at 24.

      Using an offense level of 33—required by his ACCA adjustment—and a

criminal history of category IV, the court determined the guideline range was 188

to 235 months. Mr. Cherry was sentenced to 188 months’ incarceration and three

years’ supervised release.



                                    Discussion

      Federal law prohibits convicted felons from possessing firearms, imposing

a punishment of at least 15 years’ imprisonment for violators with three or more

prior convictions for serious drug offenses or violent felonies under the ACCA.

18 U.S.C. §§ 922(g), 924(e)(1); Johnson v. United States, 559 U.S. 133, 136

(2010).

      On appeal, Mr. Cherry disputes that his prior convictions qualify him for

this enhanced punishment. He reopens two challenges: first, that his conviction

in 1993 was for conjoint robbery, which is arguably not a violent felony as

defined by the ACCA, and second, that his convictions in 1993 should be counted

as a single predicate because they were not “committed on occasions different

from one another.” We review both claims de novo. See United States v.

Johnson, 130 F.3d 1420, 1430 (10th Cir. 1997). For the reasons explained below,

we disagree.




                                        -3-
                               A. The 1993 Robberies

      To succeed on his first claim, Mr. Cherry faces two hurdles. He first must

demonstrate his robbery conviction was for conjoint robbery in violation of Okla.

Stat. tit. 21, § 800 (“section 800”), and not—as the district court found—for

robbery by force and fear in violation of Okla. Stat. tit. 21, § 791 (“section 791”).

If he succeeds, then he must show that conjoint robbery is not a violent felony as

defined by the ACCA. Mr. Cherry fails, however, to clear the first hurdle,

because according to the judgment, he was convicted of robbery by force and fear

pursuant to section 791, a violent felony under the ACCA.

      The record on appeal contains two references to the robbery conviction in

1993: the judgment and the charging information. The judgment, although not

part of the record, is referenced in Mr. Cherry’s PSR. Citing the judgment, the

PSR provides that on March 15, 1993, Mr. Cherry was convicted of two counts of

“Robbery by Force and Fear” pursuant to section 791. 3 R. 6. Mr. Cherry does

not dispute the wording of the judgment. 1 The charging information contains two

relevant details: a caption that sets out a charge for “robbery by force & fear”

citing section 791 and a description that alleges Mr. Cherry and another defendant

“while acting conjointly, each aiding and abetting the other” wrongfully took

another’s property. 1 R. Supp. 3 (emphasis added). The information also

      1
         During oral argument, Mr. Cherry’s attorney began by acknowledging
that the judgment found Mr. Cherry was convicted of robbery under section 791.
Oral Arg. at 1:29 (“[Section] 791. That’s what the judgment says.”).

                                         -4-
describes how the defendants accomplished this “by means of force or violence”

in count one and “by committing an assault” on the victim in count two. Id.

      Asking this court to focus on the “aiding and abetting” language in the

information, Mr. Cherry argues that he was actually charged with—and convicted

of—conjoint robbery. He points out that the language in the information matches

the statutory language of section 800. 2 He maintains this court should disregard

the information’s caption, which cites section 791, because in Oklahoma the

“character of the offense” is determined by language in the body; the caption is

only a convenience. See G.E.D. v. Oklahoma, 751 P.2d 755, 756 (Okla. Crim.

App. 1988).

      His argument fails because we need not reach the information. The final

judgment is not ambiguous. As the government urged in oral argument—and is

confirmed by the PSR—the judgment apparently contains no reference to the

words “conjoint.” Oral Arg. at 17:06. It contains no reference to the words

“aiding and abetting.” Id. at 17:08. As we understand it, it contains no reference

to section 800. Id. at 17:10. Thus, we have no reason to look beyond the

judgment of conviction. Our inquiry begins and ends there.


      2
         This statute provides: “Whenever two or more persons conjointly commit
a robbery or where the whole number of persons conjointly commits a robbery
and persons present and aiding such robbery amount to two or more, each and
either of such persons shall be guilty of a felony punishable by imprisonment in
the State Penitentiary for not less than five (5) years nor more than fifty (50)
years.” Okla. Stat. tit. 21, § 800.

                                       -5-
     B. The 1993 Robberies and the 1993 Assault Were Separate and Distinct

      In addition to three prior violent felony convictions, the ACCA requires

each felony be “committed on occasions different from one another.” 18 U.S.C.

§ 924(e)(1). Mr. Cherry’s second argument is that his robbery and assault

convictions in 1993 “occurred in a single ongoing occasion,” and therefore he

lacks the three required predicates for an ACCA enhancement. Aplt. Br. at 24.

      We have long interpreted the phrase “committed on occasions different

from one another” to include “multiple criminal episodes distinct in time.”

United States v. Tisdale, 921 F.2d 1095, 1098–99 (10th Cir. 1990). Criminal

acts—even those that are similar and occur closely in time—may constitute

separate, predicate offenses when the defendant could have chosen to stop his

illegal conduct but continued nonetheless. See United States v. Delossantos, 680

F.3d 1217, 1220 (10th Cir. 2012). For example, a defendant who burglarized

three businesses within the same shopping mall in a single night committed three

separate and distinct criminal episodes. Tisdale, 921 F.2d at 1099. After

burglarizing one business, the defendant was free to leave but instead continued

his spree. Id.

      Under this rubric, Mr. Cherry’s criminal acts were separate and distinct.

The robberies and assault targeted different victims. The crimes occurred miles

apart and at different times. Mr. Cherry committed the robberies with a co-

defendant; he committed the assault on his own. See generally United States v.

                                       -6-
Boman, 810 F.3d 534, 543–44 (8th Cir. 2016) (finding a defendant’s two prior

convictions that occurred on the same day and both involved a gun were separate

and distinct under the ACCA because they involved different victims, were

separated by about 90 minutes, and occurred in different locations).

      Mr. Cherry argues that the government did not meet its burden of proving,

by a preponderance of the evidence, that the acts were separate and distinct. See

Delossantos, 680 F.3d at 1219 (noting the government’s burden of proof). The

evidence in the record, however, supports a finding that the enhancement was

appropriate. The district court properly relied on the information in concluding

the crimes were separate and distinct. Mr. Cherry also claims that for the crimes

to be truly separate and distinct, he would have had to reach “a safe haven” after

completing a criminal act before launching into another unlawful act. See Aplt.

Br. at 26. The law does not require a period of such security. It asks, instead,

whether a defendant could have ended his criminal spree but chose instead to

continue. Here, Mr. Cherry chose to continue.

                                 C. Johnson Error

      Finally, we recognize that the district court determined that Mr. Cherry’s

1993 conviction for robbery satisfied “both prongs”—the force and residual

clauses—of the ACCA. See 2 R. 21–22. We now know that the residual clause of

the ACCA violates due process because it is “unconstitutionally vague.” See

Johnson v. United States, 135 S. Ct. 2551, 2557 (2015). The predicate

                                        -7-
convictions, however, need only qualify under one of the ACCA’s clauses to

make Mr. Cherry eligible for the sentencing enhancement. Accordingly, the

Supreme Court’s holding in Johnson does not disturb the district court’s

determination that Mr. Cherry’s prior convictions of robbery, assault, and assault

and battery are predicate offenses under the force clause. See, e.g., United States

v. Taylor, 800 F.3d 701, 719 (6th Cir. 2015).

      AFFIRMED. Mr. Cherry’s motion to unseal his objections to the PSR is

DENIED. 3



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




      3
         Local rules instruct the defendant not to file objections with the district
court, and therefore, the court properly sealed the objections. See E.D. Okla.
Crim. R. 32.1(b) (dictating that responses “shall not be filed with the United
States Court Clerk, in order to preserve the confidentiality of the Presentence
Report”).

                                         -8-
