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                                                                     [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17645
                       ________________________

                D.C. Docket No. 8:16-cr-00335-JDW-JSS-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

                                   versus

ADAM LONGORIA,

                                                        Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (November 1, 2017)

Before TJOFLAT, MARCUS, and JORDAN, Circuit Judges.

PER CURIAM:
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      Adam Longoria was convicted of possession of a firearm by a convicted

felon1 and was sentenced to fifteen years in prison under an Armed Career

Criminal Act (“ACCA”) sentence enhancement. 2 This ACCA sentence

enhancement, applicable when a defendant has “three previous convictions . . . for

a violent felony or a serious drug offense, or both, committed on occasions

different from one another,”3 was based upon three previous serious drug-related

convictions: two counts of distribution of cocaine4 and one count of participation

in a conspiracy with intent to distribute cocaine. 5

      Longoria appeals his conviction and sentence on four grounds. Three are

squarely foreclosed by our precedent. See infra part IV. Longoria’s first issue,

whether the District Court erred in determining that he had three predicate offenses

that occurred on different occasions under the ACCA, is also unavailing.

Accordingly, we affirm his conviction and sentence.

                                            I.

      In 2009, Longoria was charged with one count of participation in a

conspiracy to possess with intent to distribute cocaine, a violation of 21 U.S.C.

§ 846, and two counts of distribution of cocaine, a violation of 21 U.S.C.

      1
          18 U.S.C. § 922(g)(1).
      2
          Id. § 924(e)(1).
      3
          Id.
      4
          21 U.S.C. § 841(a)(1).
      5
          Id. § 846.
                                            2
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§ 841(a)(1). The indictment charged that the conspiracy occurred from an

“unknown date which was no later than December, 2007, through on or about

December 10, 2008.” The indictment also charged that the two distribution

offenses occurred on November 24, 2008 and December 3, 2008.

      Longoria pleaded guilty to each of the three counts. He admitted to the

following facts in his plea agreement. 6 Longoria told undercover detectives that

his co-defendant, Richard Caraballo, could sell them kilograms of cocaine for

$20,000 per kilogram. Undercover detectives contacted Longoria on November

24, 2008, and Longoria arranged a meeting between the detectives and Caraballo.

The detectives purchased five and a half grams of cocaine from Caraballo on that

date. Longoria and Caraballo met with the detectives again on December 3, 2008,

when the detectives purchased thirty-five grams of cocaine. One week later, on

December 10, Longoria met with the detectives to verify that they had $20,000 to

purchase one kilogram of cocaine from Caraballo before the detectives went to

Caraballo’s house. Authorities later discovered 1,142 grams of cocaine at

Caraballo’s house.

      Longoria was sentenced to thirty-seven months in prison in April 2010. The

judgment stated that the distribution offenses ended on November 24 and




      6
          Longoria confirmed that this version of facts was correct at his change-of-plea hearing.
                                                 3
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December 3, 2008, and the conspiracy offense ended on December 10, 2008.

Longoria was incarcerated and later left prison under supervised release.

       In 2016, Longoria was arrested and charged with possession of a firearm by

a convicted felon, a violation of 18 U.S.C. § 922(g)(1). Longoria pleaded guilty

and admitted the following facts. 7 In March 2015, while on supervised release,

Longoria had arranged via Facebook to sell a rifle to an undercover detective for

$300. He told the detective that he was a felon and that his wife would carry out

the sale. 8 The detective met with the woman, and she exchanged the rifle with him

for $300. Longoria called the detective after the sale to explain that he had been

afraid to sell the rifle in person because of his past arrest.

       The maximum sentence under 18 U.S.C. § 922(g)(1), without a sentence

enhancement, is ten years in prison. Longoria’s plea agreement noted this

maximum. The Probation Office, however, later indicated that Longoria qualified

as an armed career criminal under the ACCA and was subject to a fifteen-year

statutory minimum sentence. After this discovery, the District Court gave Longoria

the opportunity to withdraw his plea. He declined. The District Court then

examined Longoria’s 2009 plea agreement and the transcript of the change-of-plea

hearing, and, relying upon the three counts relating to the incidents of November

       7
           Longoria also confirmed that this version of facts was correct at his change-of-plea
hearing.
       8
         The woman who met with the detective to consummate the sale, Crystal Arjona, was
actually Longoria’s girlfriend.
                                                  4
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24, December 3, and December 10, 2008, determined that the “three previous

convictions” constituted “serious drug offense[s] . . . committed on occasions

different from one another.”9 18 U.S.C. § 924(e)(1). Consequently, the District

Court sentenced Longoria to fifteen years in prison.10

       Longoria appeals his conviction and sentence on four grounds. First, he

claims that the District Court erred by finding that his three predicate offenses

occurred on “occasions different from one another” to qualify for a sentence

enhancement under the ACCA. Second, he claims the District Court improperly

considered “non-elemental facts,” the dates of his prior convictions, in determining

that they qualified as serious drug offenses that occurred on different occasions

under the ACCA. Third, he claims that his sentence enhancement violated his

rights under the Fifth and Sixth Amendments to the United States Constitution.

Fourth, he raises a new argument that his statute of conviction, 18 U.S.C. § 922(g),

is beyond Congress’s grant of power under the United States Constitution’s

Commerce Clause and is therefore unconstitutional.




       9
         Longoria argues that the District Court’s use of the words “transaction” and “sale” in
reference to the December 10, 2008 incident constitutes error because sale is not an element of
conspiracy. The District Court’s language, while imprecise, does not constitute error here.
Longoria’s sentence was enhanced because his two distribution convictions and one conspiracy
conviction constituted the necessary three serious drug offense predicates.
       10
           Longoria was sentenced to an additional twenty-one months, to run concurrently with
the fifteen-year sentence, because this crime was a violation of the terms of his supervised
release in the 2009 case.
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                                               II.

       This Court reviews de novo whether prior offenses meet the ACCA’s

different-occasions requirement. United States v. Sneed, 600 F.3d 1326, 1330 n.5

(11th Cir. 2010). We also review de novo whether a prior conviction qualifies as a

serious drug offense for purposes of the ACCA. 11 United States v. Braun, 801

F.3d 1301, 1303 (11th Cir. 2015). Constitutional challenges to sentences are

reviewed de novo. United States v. Weeks, 711 F.3d 1255, 1259 (11th Cir. 2013).

Longoria’s second constitutional claim, a Commerce Clause challenge to 18

U.S.C. § 922(g), is reviewed for plain error because he raises it for the first time on

appeal. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). Plain error

occurs “if (1) there was error, (2) that was plain, (3) that affected the defendant's

substantial rights, and (4) that seriously affected the ‘fairness, integrity, or public

reputation of judicial proceedings.’” Id. (quoting United States v. Jones, 289 F.3d

1260, 1265 (11th Cir. 2002)).

                                               III.

       Under the ACCA, a defendant found guilty of possession of a firearm by a

convicted felon pursuant to 18 U.S.C. § 922(g) is subject to a mandatory minimum


       11
          Appellee argues that part of this argument is unpreserved and thus should be reviewed
only for plain error. But the arguments below relating to this issue are messily interwoven and at
least some appear to have been properly preserved. Here, under a de novo review standard, we
affirm on this issue. Therefore, we would also affirm under a plain error standard and need not
reach the question of which standard of review should apply to each issue and sub-issue in this
argument.
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sentence of fifteen years’ imprisonment if he has three prior convictions for a

violent felony or serious drug offense “committed on occasions different from one

another.” 18 U.S.C. § 924(e)(1). To determine the nature of a prior conviction, a

court “is generally limited to examining the statutory definition [of the offense of

the prior conviction], charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to which the defendant

assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 1257

(2005). The existence of both “prior convictions and the factual nature of those

convictions, including whether they were committed on different occasions,” may

be determined by district courts “so long as they limit themselves to Shepard-

approved documents.” Weeks, 711 F.3d at 1259.

      To qualify under § 924(e)(1), prior convictions must have arisen from

“separate and distinct criminal episode[s]” and be for “crimes that are temporally

distinct.” Sneed, 600 F.3d at 1329 (quotations omitted). When evaluating whether

crimes were committed on different occasions, we have held that “so long as

predicate crimes are successive rather than simultaneous, they constitute separate

criminal episodes for purposes of the ACCA.” United States v. Pope, 132 F.3d

684, 692 (11th Cir. 1998).

      This Court has yet to address the resolution of the ACCA’s different-

occasions inquiry when a substantive drug distribution offense occurs within the

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span of a conspiracy to distribute that drug. 12 We have, however, addressed an

analogous issue under a similar statutory scheme. In United States v. Rice, 43 F.3d

601 (11th Cir. 1995), we affirmed a sentence enhancement under 21 U.S.C.

§ 841(b)(1)(A) for substantive drug offenses that overlapped with a conspiracy.

We held that crimes which “occur on different occasions or are otherwise distinct

in time” may be used as predicate offenses, and we determined that acts

constituting substantive drug offenses and conspiracies which are “separate in time

and locale and . . . requir[e] separate planning and execution” are sufficiently

unrelated for § 841(b)(1)(A) enhancement purposes. Id. at 608. We later

determined a substantive drug offense that occurred within a conspiracy was

sufficiently unrelated under this statute, even if it “may have resulted from criminal

conduct in furtherance of one overall conspiracy.” United States v. Hansley, 54

F.3d 709, 717 (11th Cir. 1995).

       The present substantive-conspiracy different-occasions question under the

ACCA has been answered elsewhere. The Eighth Circuit addressed it in United

States v. Melbie, 751 F.3d 586 (8th Cir. 2014). In Melbie, the Eighth Circuit

concluded that a possession offense that occurred “during the period of the

       12
           Although this Court has not spoken directly to this issue to date, it has been argued
here before. In United States v. Bargeron, 435 F. App’x 892 (11th Cir. 2011) (per curiam), we
avoided the question of whether one federal drug conspiracy offense and two Florida drug
trafficking offenses satisfied the different-occasions inquiry by determining that “even if the
district court erred by concluding that Bargeron’s conspiracy conviction qualified as a third
predicate ACCA conviction, any such error was harmless” because the necessary three predicate
convictions existed in that case with or without the conspiracy. Id. at 894.
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conspiracy and was related to the object of the conspiracy” was a “discrete episode

in a series of events.” Id. at 587. As such, the possession offense and conspiracy

offense occurred on different occasions for ACCA purposes. Id.

      We agree with the Eighth Circuit in Melbie, and with our rationale under a

similar statute in Rice and Hansley, that a drug conspiracy and a substantive drug

offense occurring within its span may have been “committed on occasions different

from one another” under the ACCA. Here, the facts of Longoria’s case make this

determination simple. Longoria’s three predicate crimes are temporally distinct.

His two distribution offenses occurred at clear and obvious points in time separated

by nine days—November 24, 2008 and December 3, 2008—and were discrete

episodes in the series of events constituting his participation in the drug

conspiracy.

      The conspiracy offense is no less clearly defined for ACCA purposes. The

District Court consulted Shepard-approved documents to determine the conspiracy

concluded December 10, 2008, a full week after Longoria’s second distribution

offense. There is no question that Longoria “had the opportunity to desist but

chose instead to commit another crime” during the seven days between selling

thirty-five grams of cocaine and consummating his conspiracy to sell one kilogram

of cocaine. United States v. Proch, 637 F.3d 1262, 1266 (11th Cir. 2011).

Because Longoria’s predicate crimes were “successive rather than simultaneous,”

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they constitute “separate criminal episodes” under the ACCA. Pope, 132 F.3d at

692. Accordingly, the District Court did not err in determining that Longoria’s two

convictions for distribution of cocaine and one conviction for participation in a

conspiracy with intent to distribute cocaine qualified as predicate offenses for a

sentence enhancement under the ACCA.

                                         IV.

      Longoria’s three remaining arguments—that the District Court erred in

looking at the dates of his prior convictions because they were “non-elemental

facts,” that his sentence enhancement violates his Fifth and Sixth Amendment

rights, and that his statute of conviction is unconstitutional—are directly foreclosed

by Eleventh Circuit and Supreme Court precedent. As such, they require little

discussion.

                                         A.

      Longoria argues that the District Court should not have looked at “non-

elemental facts,” the dates of his prior convictions, in Shepard-approved

documents when deciding whether his predicate offenses were committed on

different occasions. This argument is directly foreclosed by our precedent. We

held directly to the contrary in United States v. Weeks, 711 F.3d 1255 (11th Cir.

2013). In Weeks, we explained that “for ACCA purposes, district courts may

determine both the existence of prior convictions and the factual nature of those

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convictions, including whether they were committed on different occasions, so long

as they limit themselves to Shepard-approved documents.” Id. at 1259 (emphasis

added). That is precisely what occurred here. Because Longoria’s claim is in

direct opposition to Weeks, it must fail.

                                            B.

      Longoria’s claim that his Fifth and Sixth Amendment rights were violated

by the District Court determining his convictions occurred on different occasions is

unavailing due to Eleventh Circuit and Supreme Court precedent. We held in

Weeks that district courts are permitted to determine “the factual nature” of the

convictions, “including whether they were committed on different occasions.” Id.

The Supreme Court, meanwhile, has held that “a penalty provision, which simply

authorizes a court to increase the sentence for a recidivist,” need not be alleged by

the government in its indictment. Almendarez-Torres v. United States, 523 U.S.

224, 226–27, 118 S. Ct. 1219, 1222 (1998) (interpreting 8 U.S.C. § 1326).

Longoria’s arguments on this point cannot succeed.

                                            C.

      Longoria’s Commerce Clause challenge to § 922(g) is without merit. We

have clearly held that § 922(g) is constitutional under the Commerce Clause.

United States v. McAllister, 77 F.3d 387, 391 (11th Cir. 1996) (“We hold that

§ 922(g)(1) is not an unconstitutional exercise of Congress’s power under the

                                            11
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Commerce Clause . . . .”). Therefore, his argument is foreclosed at this stage. See

Sneed, 600 F.3d at 1332 (describing “the strength” of this Court’s prior precedent

rule). Longoria has not shown the District Court committed error, let alone plain

error, on this issue.

                                         V.

       The District Court did not err in determining that Longoria had three ACCA

predicate convictions that were “committed on occasions different from one

another.” 18 U.S.C. § 924(e)(1). Longoria’s guilty plea to three serious drug

offenses relating to the events of November 24, December 3, and December 10,

2008—all separated by one week or more—constituted sufficient temporal

distinctness under the ACCA. All of Longoria’s remaining arguments also fail.

Accordingly, we affirm the District Court’s judgment and uphold Longoria’s

conviction and sentence.

       AFFIRMED.




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