                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                June 1, 2006
                              No. 05-16482                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                   D. C. Docket No. 04-00591-CR-WBH-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,


                                   versus

ALBERT BROWN,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                               (June 1, 2006)

Before CARNES, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     Albert Brown appeals his 264-month sentence imposed following his guilty
plea to robbery and firearms offenses. After review, we affirm.

                                I. BACKGROUND

      Brown and two co-defendants, carrying firearms, robbed a restaurant in

Atlanta, Georgia. The robbers fled in a van at a high rate of speed, at one point

nearly hitting a woman and small boy. During pursuit by police, the van’s driver

ran a red light and drove erratically until he came to a dead end. All three robbers

exited the van and were apprehended while attempting to flee. Brown pled guilty

to these five crimes: conspiracy to interfere with commerce by robbery, pursuant to

18 U.S.C. § 1951(a) (Count 1); aiding & abetting interference with commerce by

robbery, pursuant to 18 U.S.C. §§ 1951(a) & 2 (Count 2); conspiracy to possess

firearms in furtherance of a robbery, pursuant to 18 U.S.C. § 924(n) (Count 3);

possession of a firearm during and in relation to robbery, pursuant to 18 U.S.C.

§§ 924(c)(1)(A)(ii) & 2 (Count 4); and unlawful possession of a firearm by a

convicted felon, pursuant to 18 U.S.C. § 922(g) (Count 7).

      At sentencing, the presentence investigation report (“PSI”) classified Brown

as an armed career criminal within the meaning of 18 U.S.C. § 924(e) and U.S.S.G.

§ 4B1.4, based on these five qualifying prior felony convictions: (1) robbery,

#84CR1964, Dekalb County Superior Court, Decatur, Georgia; (2) possession of

cocaine with intent to distribute on April 7, 1990, #Z22369, Fulton County



                                          2
Superior Court, Atlanta, Georgia; (3) possession of marijuana with intent to

distribute on February 12, 2002, #02CR4196, Dekalb County Superior Court,

Decatur, Georgia; (4) possession of marijuana with intent to distribute on April 3,

2002, #02CR4196, Dekalb County Superior Court, Decatur, Georgia; and (5)

possession of marijuana with intent to distribute on April 4, 2002, #02CR4196,

Dekalb County Superior Court, Decatur, Georgia. Brown’s three prior marijuana

offenses were charged as separate counts in one indictment in case number

84CR4196, Dekalb County Superior Court, Decatur, Georgia and were based upon

sales of marijuana to an undercover police officer on three different dates.1

       Brown did not dispute that he had these convictions. Rather, Brown

objected, arguing that he did not have three qualifying prior offenses. Brown

asserted that his robbery offense was not a violent felony and that his prior three-

count indictment for marijuana offenses involved a course of conduct that

constituted only one offense. Thus, Brown claimed he had only two qualifying

prior serious drug convictions, to wit: (1) the possession of cocaine with intent to

distribute on April 7, 1990 and (2) one marijuana possession with intent to

distribute. The district court overruled Brown’s objection, finding that Brown was



       1
         In addition to the five qualifying felony offenses, the PSI showed that Brown had five
other prior felony convictions and numerous misdemeanor offenses, which yielded 16 criminal
history points and a criminal history category of VI.

                                                3
an armed career criminal.

      The district court sentenced Brown as an armed career criminal to a

mandatory minimum 180-month term of imprisonment on Counts 1, 2, 3 and 7.

See 18 U.S.C. § 924(e). On Count 4 (firearm possession in furtherance of a

robbery), the district court sentenced Brown to the mandatory minimum 84-month

term of imprisonment, to run consecutively, resulting in a total of 264 months’

imprisonment. See U.S.S.G. § 2K2.4(b) (providing that the Guidelines sentence is

the minimum term of imprisonment required by 18 U.S.C. § 924(c)(1)(A)(ii) and

(c)(2), which is 84 months, consecutive to any other sentence). Brown timely

appealed.

                                  II. DISCUSSION

      “The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), provides

a mandatory minimum sentence of fifteen years for anyone who violates 18 U.S.C.

§ 922(g)[, by illegally possessing a firearm,] after three convictions for a violent

felony or a serious drug offense.” United States v. Greer, 440 F.3d 1267, 1269

(11 th Cir. 2006); see also 18 U.S.C. § 924(e)(1). Section 4B1.4 of the Sentencing

Guidelines implements the ACCA. See U.S.S.G. § 4B1.4 cmt. background.

Under the ACCA, the three qualifying offenses must be temporally distinct. See

18 U.S.C. § 924(e) (requiring offenses to have been “committed on occasions



                                           4
different from one another”); United States v. Jackson, 57 F.3d 1012, 1017-18 (11 th

Cir. 1995). However, the convictions need not have been obtained on separate

occasions; nor are separate indictments required. See id.

       Offenses that “are successive rather than simultaneous . . . constitute

separate criminal episodes for purposes of the ACCA. United States v. Pope, 132

F.3d 684, 692 (11 th Cir. 1998) (concluding that two burglaries committed on the

same evening in separate buildings 200 yards apart were sufficiently distinct under

the ACCA); see also United States v. Spears, 443 F.3d 1358, 1360 (11 th Cir. 2006)

(concluding that two robberies committed within two minutes and thirty feet of

each other were sufficiently distinct under the ACCA). “[T]he ‘successful’

completion of one crime plus a subsequent conscious decision to commit another

crime makes that second crime distinct from the first . . . .” Pope 132 F.3d at 692.

Thus the ACCA will apply “to criminals who commit three offenses in temporal

and physical proximity to one another if the perpetrator had a meaningful

opportunity to desist his activity before committing [another] offense.” Id. at 690.

“Mere temporal proximity is ordinarily insufficient to merge multiple offenses into

a single criminal episode. Distinctions in time and place are usually sufficient to

separate criminal episodes from one another even when the gaps are small.” Id.2


       2
         “We review de novo a district court’s determination of whether two crimes constitute a
single criminal episode or two separate felonies for purposes of section 924(e).” Spears, 443

                                               5
       Here, although the three marijuana offenses were charged in one indictment,

sufficient time passed between the conduct underlying each offense to give Brown

“meaningful opportunity” to stop before committing the next offense. According

to the PSI, which Brown did not dispute, Brown’s convictions were for selling

marijuana to an undercover police officer on February 12, 2002, April 3, 2002 and

April 4, 2002.3 Notably, two of these transactions occurred seven weeks apart,

more than sufficient time to consider them separate offenses. Thus, Brown has at

least three qualifying prior convictions: (1) possession of cocaine with intent to

distribute on April 7, 1990; (2) possession of marijuana with intent to distribute on

February 12, 2002; and (3) possession of marijuana with intent to distribute on

April 3, 2002. Because we conclude that Brown has three qualifying prior

convictions without his prior robbery offense being counted, we do not address

Brown’s argument that his prior robbery conviction did not constitute a violent

felony for purposes of the ACCA. Accordingly, the district court did not err in

sentencing Brown to the mandatory minimum 180-month sentence required by the




F.3d at 1360.
       3
        On appeal and in the district court Brown has not disputed his prior convictions for
possession of marijuana with intent to distribute on these different dates. Similarly, Brown has
never raised a challenge based upon Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254
(2005).

                                                6
ACCA.4

       AFFIRMED.




       4
        Brown also challenges the district court’s offense level calculations under the
Sentencing Guidelines. The district court based Brown’s total sentence on the mandatory
minimums in the ACCA and in 18 U.S.C. § 924(c)(1)(A)(ii), not on its Guidelines calculations.
Therefore, any possible misapplication of the Guidelines would be harmless error. See Williams
v. United States, 503 U.S. 193, 202-03, 112 S. Ct. 1112, 1120-21 (1992) (holding that remand is
not required where a misapplication of the Guidelines did not affect the sentence imposed).

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