     Case: 17-30724      Document: 00514468593         Page: 1    Date Filed: 05/11/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals

                                    No. 17-30724
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                         May 11, 2018
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

JONATHAN E. JOUETTE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:17-CR-9-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Jonathan E. Jouette appeals his 180-month sentence—the mandatory
minimum under the Armed Career Criminal Act (ACCA)—for being a felon in
possession of a firearm. See 18 U.S.C. § 924(e). Jouette first contends that his
prior Louisiana conviction for burglary of a pharmacy should not have counted
as a qualifying “violent felony” conviction for ACCA purposes. Second, he
asserts that because he committed the pharmacy burglary and another ACCA


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-30724

predicate offense—distribution of narcotics—on the same day, the district
court erred in finding that they were separate offenses, as required for an
ACCA enhancement. We review the district court’s application of the ACCA
de novo. See United States v. McGee, 460 F.3d 667, 668 (5th Cir. 2006).
      With respect to his first issue, Jouette disputes neither the knowing and
voluntary nature of his guilty plea to burglary of a pharmacy nor the district
court’s implicit finding that pharmacy burglary, as defined by Louisiana law,
constitutes a “generic” burglary under the categorical approach mandated by
Taylor v. United States, 495 U.S. 575, 602 (1990). See United States v. Reagan,
596 F.3d 251, 254 (5th Cir. 2010) (holding that unbriefed arguments are
waived).   Rather, he argues that had the district court—as an equitable
matter—used the modified categorical approach to consult various state-court
documents, it would have learned that he did not in fact burgle a pharmacy
but a pharmaceutical trailer. See generally Shepard v. United States, 544 U.S.
13, 16 (2005). As he does not allege legal error in the district court’s use of the
categorical approach, however, Jouette concedes that the court was thus bound
to “look only to the statutory definitions of the prior offenses, and not to the
particular facts underlying those convictions.” Taylor, 495 U.S. at 600. And
because that is what the district court did, there was no ACCA error. See
McGee, 460 F.3d at 668.
      In his second issue, Jouette argues that the district court erred in finding
that his prior pharmacy burglary and drug distribution offenses were
“committed on occasions different from one another.” § 924(e)(1). “The critical
inquiry” in determining whether two offenses occurred on different occasions
is “whether the offenses occurred sequentially.” United States v. Fuller, 453
F.3d 274, 278 (5th Cir. 2006) (internal quotation marks and citation omitted).
Offenses occur sequentially if they are “distinct in time” from one another.



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                                No. 17-30724

United States v. White, 465 F.3d 250, 253 (5th Cir. 2006) (internal quotation
marks and citations omitted).
     Jouette bases this argument on his state-court guilty plea form, which
reflects that the pharmacy burglary and drug distribution offenses occurred on
the same day. That two prior offenses occurred on the same day does not, ipso
facto, mean that they were not otherwise distinct in time, even if separated
only by minutes. See United States v. Ressler, 54 F.3d 257, 259-60 (5th Cir.
1995). Jouette points to nothing in the record suggesting that he committed
the burglary and distribution offenses simultaneously. Rather, following the
burglary, Jouette was free to cease and desist from further criminal behavior.
See id. at 260. By distributing drugs, he thus “chose to initiate a new course
of action and commit a separate offense, distinct in both time and conduct”
from the burglary. Id. This logic holds true even if the distribution offense
preceded the burglary. In either event, Joutte fails to show that the district
court erred in applying the ACCA. See McGee, 460 F.3d at 668.
      The judgment is AFFIRMED.




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