                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0440n.06

                                          No. 13-5730

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
UNITED STATES OF AMERICA,                               )                       Jun 17, 2014
                                                        )                   DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
THADDEUS DANIEL,                                        )       COURT FOR THE EASTERN
                                                        )       DISTRICT OF TENNESSEE
       Defendant-Appellant.                             )
                                                        )
                                                        )
                                                        )


       Before: NORRIS, CLAY, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. In 1995, Thaddeus Daniel pled guilty to six counts of

aggravated robbery in violation of Tennessee Code § 39-13-402. Seventeen years later, Daniel

pled guilty to possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1).

Based upon Daniel’s prior convictions for aggravated robbery, the district court determined that

Daniel was an armed career criminal under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e)(1).   That determination gave rise to a mandatory-minimum sentence of 15 years.

Daniel now argues, among other things, that the district court engaged in improper fact-finding

when it found that his aggravated-robbery convictions occurred on separate “occasions” for

purposes of the Act. We reject his arguments and affirm.
No. 13-5730
United States v. Daniel

                                                  I.

       In August 2008, while on routine patrol in his squad car, Chattanooga Police officer

William Salyers saw a silver car with four men inside, one of them Daniel. Each of the men was

pointing a firearm at two people who were standing outside the car with their hands in the air.

All four of the assailants fled when they saw Salyers’ vehicle. Another officer eventually found

Daniels in an alley with a rifle and a wallet belonging to one of the robbery victims.

       A federal grand jury later charged Daniel with possession of a firearm as a felon. Daniel

pled guilty without a plea agreement. During his plea colloquy, Daniel said that he had reviewed

and understood the indictment, the charges against him, and the potential penalties. He also said

that he had discussed the case with his attorney and that he had not been coerced into pleading

guilty. The district court accepted his guilty plea.

       A probation officer thereafter prepared Daniel’s presentence report, which included a

recommendation that Daniel be treated as an armed career criminal—and thus be subject to a

mandatory-minimum 15-year penalty under the Armed Career Criminal Act—because of his six

prior convictions for aggravated robbery. That recommendation apparently upset Daniel: his

lawyer reported that Daniel wished to represent himself, and Daniel proceeded to file a pro se

motion to withdraw his guilty plea. After a hearing, the court allowed Daniel to represent

himself in the case but denied his plea-withdrawal motion, which the district court said was

based on little more than pleader’s remorse.

       The district court thereafter held a sentencing hearing, during which Daniel objected to

the PSR’s recommendation that the court sentence him as an armed career criminal. Daniel

argued that his six prior armed robbery convictions should only count as one predicate offense,

because they had occurred during one crime spree that spanned a little less than two hours. The


                                                 -2-
No. 13-5730
United States v. Daniel

district court disagreed, concluding that, spree or not, the six robberies had occurred on separate

occasions as that term is used under the Armed Career Criminal Act. The court therefore held

that each of the six robberies counted as a separate predicate offense under the Act.

       During the sentencing hearing, the district court also heard testimony from two officers

about the 2008 robbery. Based on their testimony, the court found that the government had

established by a preponderance of the evidence that Daniel possessed a rifle in connection with

the   2008    robbery.       The    court   therefore    enhanced     Daniel’s   sentence    under

U.S.S.G. § 4B1.4(b)(3)(A). The court then imposed a sentence of 211 months’ imprisonment.

       This appeal followed.

                                                II.

                                                A.

       Daniel argues that the district court improperly denied his motion to withdraw his guilty

plea. We review the denial for an abuse of discretion. United States v. Valdez, 362 F.3d 903,

912 (6th Cir. 2004).

       “A defendant has no right to withdraw his guilty plea.” United States v. Martin, 668 F.3d

787, 794 (6th Cir. 2012). Instead, the defendant bears the burden of showing “a fair and just

reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In determining whether a

defendant has made this showing, courts consider, among other factors, any delay in filing the

motion to withdraw, whether the defendant has asserted his innocence, and the potential

prejudice to the government if the motion to withdraw were granted. See United States v.

Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994).

       Here, Daniel waited four months before he moved to withdraw his plea, and did so only

after the probation officer recommended that Daniel be sentenced as an armed career criminal


                                                -3-
No. 13-5730
United States v. Daniel

(thus subjecting him to a longer sentence). Moreover, as the district court noted, Daniel did not

assert his innocence in seeking to withdraw his plea. The court also found that withdrawal of the

plea, after a four-month delay, would prejudice the government. We have no reason to second-

guess any of those findings. Nor do we see any reason to question the court’s finding that

Daniel’s plea was voluntary. The district court did not abuse its discretion in refusing to allow

Daniel to withdraw his plea.

                                                B.

        Daniel argues that the district court engaged in improper fact-finding, in violation of the

Sixth Amendment, when it determined that Daniel is an armed career criminal. We review his

challenge de novo. See United States v. Anderson, 695 F.3d 390, 398 (6th Cir. 2012).

       The Armed Career Criminal Act states that “a person who violates section 922(g) of this

title and has three previous convictions by any court referred to in section 922(g)(1) of this title

for a violent felony or a serious drug offense, or both, committed on occasions different from one

another, . . . shall be . . . imprisoned not less than fifteen years[.]” 18 U.S.C. § 924(e)(1)

(emphasis added). Meanwhile, after Daniel’s sentencing, the Supreme Court held that facts

giving rise to a mandatory minimum must be found by a jury beyond a reasonable doubt. See

Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). Daniel thus argues that a jury, rather

than the district court, should have determined whether his Tennessee robbery “spree” should

have counted as one offense or six for purposes of the Armed Career Criminal Act.

       The problem with Daniel’s argument is that he concedes the dispositive facts: namely,

that he robbed six different victims at different times over an approximately 90-minute period.

Hence there are no disputed facts for a jury to find; instead, the court was merely required to

determine whether an undisputed body of facts met a particular legal standard for purposes of the


                                                -4-
No. 13-5730
United States v. Daniel

Act. Specifically, the court was required to determine whether Daniel’s robberies took place on

different “occasions.” “[T]wo offenses are committed on different occasions under [the Act] if:

(1) it is possible to discern the point at which the first offense is completed, and the subsequent

point at which the second offense begins; (2) it would have been possible for the offender to

cease his criminal conduct after the first offense, and withdraw without committing the second

offense; or (3) the offenses are committed in different residences or business locations.” United

States v. Paige, 634 F.3d 871, 873 (6th Cir. 2011) (internal quotation marks omitted). Here, the

undisputed facts that Daniels robbed different victims, at different times, meant that the court

could determine when the first offense ended and the next began, which in turn meant that the

robberies took place on different occasions for purposes of the Act. Thus, based on the facts that

Daniel himself conceded, the district court properly determined that he was an armed career

criminal.

                                                 C.

       Finally, Daniel argues that the district court improperly enhanced his sentence under

U.S.S.G. § 4B1.4(b)(3)(A) for using a firearm during the 2008 robbery. This argument is

meritless: the enhancement did not give rise to a mandatory minimum, which means that the

district court, rather than a jury, could find the facts supporting the enhancement. See United

Sates v. Al-Cholan, 610 F.3d 945, 955 (6th Cir. 2010). And the district court did not commit

clear error in finding that Daniel used a firearm during the 2008 robbery, since two officers

testified to that effect during Daniel’s sentencing hearing.

                                             *    *    *

       The district court’s judgment is affirmed.




                                                 -5-
