                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                 DEC 1 2004
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                       Clerk

 UNITED STATES OF AMERICA,

            Plaintiff-Appellee,
                                                             No. 04-3001
   v.
                                                     (D.C. No. 03-CR-40010-RDR)
                                                               (Kansas)
 MARK D. HUGGINS,

            Defendant-Appellant.


                                  ORDER AND JUDGMENT*


Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and FRIOT,
District Judge.**


        By an indictment filed on January 29, 2003, in the United States District Court for

the District of Kansas, Mark D. Huggins (defendant) was charged with being a felon in

possession of four firearms on January 7, 2003, in violation of 18 U.S.C. §§ 922(g) and

924(e)(1). Pursuant to a plea agreement, the defendant pled guilty to that charge on

September 22, 2003. The presentence report indicated that as of September 22, 2003, the


        *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

         Honorable Stephen P. Friot, District Judge, United States District Court for the
        **

District of Kansas, sitting by designation.
date of the present conviction, the defendant had three previous convictions for a violent

felony, namely, convictions for second degree murder, robbery and assault of a

correctional officer.

       At sentencing, the defendant’s counsel objected to the presentence report’s

recommendation that the defendant be sentenced under the Armed Career Criminal Act.

18 U.S.C. § 924(e)(1). That statute provides as follows:

                      (e)(1) In the case of 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, such person shall be
              fined not more than $25,000 and imprisoned not less than
              fifteen years, and, notwithstanding any other provision of law,
              the court shall not suspend the sentence of, or grant a
              probationary sentence to, such person with respect to the
              conviction under section 922(g). (Emphasis ours.)

       Under that statute, a person convicted under 18 U.S.C. § 922(g) who has three

previous felony convictions, each “committed on occasions different from one another,”

shall be imprisoned for not less than 15 years. Counsel claimed that the defendant’s

murder conviction and his robbery conviction were based on a “single episode” and

therefore were not committed “on occasions different from one another,” as required by

the statute. In this regard, the murder conviction and the robbery conviction were both

based on events occurring on January 30, 1990. On that date, the defendant, along with

others, armed themselves with firearms and went in search of another street gang. Not

finding the gang they were searching for, they decided to rob a pedestrian on the street

                                             -2-
and in the process thereof, killed the victim. Thereafter, on the same day and within

probably less than an hour after the murder, the defendant, along with another, walked

about one-fourth mile from the murder scene to the apartment of an acquaintance of the

defendant and proceeded to rob her of $118. These facts were the basis for defendant’s

murder and robbery convictions. Counsel argued to the district court that the murder

conviction and the robbery conviction were not “committed on occasions different from

one another” and therefore did not meet the requirement of 18 U.S.C. § 924(e)(1). The

district court, based on Tenth Circuit precedent, rejected that argument. In so doing, the

district court relied on United States v. Lloyd, 13 F.3d 1450 (10th Cir. 1994)(“we have

previously held that offenses which occurred on the same date and were prosecuted

together may nonetheless be considered separate offenses for enhancement purposes.”)1

and United States v. Tisdale, 921 F.2d 1095 (10th Cir. 1990) (“defendant’s conduct of

breaking into the shopping mall and burglarizing three separate businesses and a post

office located inside the shopping mall” were “committed on occasions different from

one another” for the purpose of 924(e)(1)). Pursuant to 924(e)(1), the district court

sentenced the defendant to imprisonment for 15 years. The defendant appeals his

sentence.

       On appeal, counsel concedes, as we understand it, that the defendant’s argument


       1
         In this regard, in the present case the defendant was charged in separate
complaints filed in the District Court for Shawnee County, Kansas, with murder and
robbery.

                                            -3-
that the murder and the robbery convictions did not occur on separate occasions, and were,

in reality, part of a single episode, is foreclosed by Lloyd and Tisdale and other cases.

However, counsel claims that those cases were “ill-considered” and should be overruled.

That we, as a panel, cannot do. See United States v. Hernandez-Rodriguez, 352 F.3d 1325,

1333 (10th Cir. 2003), Berry v. Stevinson Chevrolet, 74 F.3d 980, 985 (10th Cir. 1996),

and United States v. Walling, 936 F.2d, 469, 472 (10th Cir. 1991).2

                            *       *      *         *   *

       Briefing was completed on April 28, 2004, and the case was then set for oral

argument on September 29, 2004. On September 2, 2004, the defendant’s motion to file a

supplemental brief was granted and the parties were served with that order by mail. The

government did not file a response to defendant’s supplemental brief. On November 3,

2004, we ordered the government to file a response to defendant’s supplemental brief,

which it did on November 22, 2004. The parties having waived oral argument, the case

was then submitted on the briefs.

       The thrust of defendant’s supplemental brief, as we read it, is that under the recent

case of Blakely v. Washington, _____ U.S. _____, 124 S.Ct. 2531 (2004), the question of

whether defendant’s murder conviction and his robbery conviction were “committed on

occasions different from one another,” or, on the contrary, arose out of a “single episode,”



       2
        Counsel filed a request that this appeal be initially heard en banc, but that request
was denied by the court on April 15, 2004.

                                               -4-
presents a “factual dispute” which, under the Sixth Amendment, must be decided by a jury,

and not by a judge. We are not persuaded by this argument.

       As we understand counsel’s supplemental brief, the defendant does not contend, for

example, that Apprendi v. New Jersey, 530 U.S. 466 (2000) holds that a jury, and not a

judge, should have decided whether defendant’s murder and robbery convictions were

“committed on occasions different from one another.” In this regard, counsel, in his brief,

recognized that two other circuits have held that Apprendi does not require that a jury, and

not a judge, should determine whether a defendant’s previous convictions were committed

on “different occasions.” See United States v. Morris, 293 F.3d 1010 (7th Cir. 2002) and

United States v. Santiago, 268 F.3d 151 (2nd Cir. 2001). Rather, it is counsel’s contention

that Blakely (not Apprendi) requires that the question of whether defendant’s murder and

robbery convictions were committed on different occasions, or, on the contrary, were

committed in an “single episode” must be decided by a jury, and not a judge. We think

that counsel overreads Blakely.

       In Blakely, the Supreme Court expressed the rule of Apprendi as follows:

              “Other than a fact of a prior conviction, any fact that increases
              the penalty for a crime beyond the prescribed statutory
              maximum must be submitted to a jury, and proved beyond a
              reasonable doubt.”

       In Blakely, the Supreme Court defined the phrase “statutory maximum” as used in

Apprendi as follows:

              “Our precedents make clear however, that the statutory

                                             -5-
              maximum for Apprendi purposes is the maximum sentence a
              judge may impose solely on the basis of the facts reflected in
              the jury verdict or admitted by the defendant.”

       Apprendi involved the constitutionality of a New Jersey statute which permitted a

judge to go beyond the prescribed statutory maximum sentence if the predicate offense

conviction was motivated by “hate.” Blakely involved the constitutionality of a

Washington statute, which allowed a trial judge to impose an “exceptional sentence” of an

additional 90 months imprisonment when the judge made a judicial determination that the

defendant, in committing the predicate offense (kidnapping his wife, permitting a

maximum sentence of 53 months), acted with “deliberate cruelty.”

       Neither Apprendi nor Blakely involved 18 U.S.C. § 924(e)(1). But counsel

contends that the rationale of Blakely dictates a holding that in the instant case, a jury, and

not the judge, must make the determination that the defendant’s convictions for murder

and robbery were “committed on occasions different from one another.” This we decline

to do. In our view, whether the murder and the robbery in the present case were

committed “on occasions different from one another” poses not so much a question of fact,

but rather a question of law. The facts are not really in dispute. We are not inclined to

extend Blakely beyond its facts.

       With Blakely not dictating a contrary result in the instant case, we are persuaded by

the rationale and result reached by the Seventh and Second Circuits in Morris and

Santiago. It is agreed that under both Apprendi and Blakely, the “fact of a prior


                                              -6-
conviction” need not be determined by a jury, and may be determined by a judge.

Almendarez-Torres v. United States, 523 U.S. 224 (1998). Whether the prior convictions

were “committed” on “one occasion” or on “different occasions,” in our view, may also be

determined by a judge, without violating the Sixth Amendment. See Morris and

Santiago.3

      In a very recent case, decided November 3, 2004, the Sixth Circuit in United States

v. Burgin, 388 F.3d 177, 186 (6th Cir. 2004), citing with approval Morris and Santiago,

spoke as follows:

             Therefore, we conclude that the determinations by a district
             court that prior felony convictions exist and were committed
             on different occasions, are so intimately related that the
             “different occasions” requirement of §924(e) sufficiently
             comes within the exception in Apprendi for a prior conviction.
             Thus, it is our determination that this issue need not be pled in
             an indictment, submitted to a jury, and proved beyond a
             reasonable doubt. The “different occasions” language
             involves the issue of recidivism, “a traditional, if not the most
             traditional, basis for a sentencing court’s increasing an
             offender’s sentence.” Apprendi, 530 U.S. at 488, 120 S.Ct
             2348. Like the fact of a prior conviction, it is not a fact that
             pertains to the commission of the offense for which the
             defendant is presently charged. Thus, the “different
             occasions” requirement of §924(e) cannot be significantly
             distinguished from “the fact of a prior conviction.”




      3
        We are aware that U.S. v. Booker, 375 F.3d 508 (7th Cir. 2004), and U.S. v.
Fanfan, 2004 WL 1723114 (D. Me. June 28, 2004) are currently pending in the Supreme
Court. Neither of those cases involves 18 U.S.C. § 924(e)(1).

                                           -7-
Judgment affirmed.



                           Submitted for the Court,

                           Robert H. McWilliams
                           Senior Circuit Judge




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