                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                     FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                           JULY 28, 2011
                             No. 10-15906                   JOHN LEY
                         Non-Argument Calendar                CLERK
                       ________________________

                D.C. Docket No. 3:09-cr-00156-MMH-JBT-1

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

  versus

BURL L. BARGERON,
a.k.a. Buckshot,

                                                     Defendant-Appellant.

                      ________________________

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

                              (July 28, 2011)

Before TJOFLAT, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
      Burl Bargeron appeals his 180-month total sentence imposed after a stipulated

bench trial at which he was convicted of two counts of being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court

applied a 15-year statutory minimum sentence, pursuant to the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on Bargeron’s 2003 federal

conviction for conspiring to distribute methamphetamine, and two 2003 state

convictions for trafficking in methamphetamine. Bargeron committed his two state

trafficking offenses in furtherance of his federal conspiracy offense. On appeal,

Bargeron argues that the district court erred in applying the ACCA 15-year minimum

sentence because his conspiracy offense did not occur on a different occasion than his

two trafficking offenses. After careful review, we affirm.

      We review de novo whether an offense is a violent felony for ACCA purposes,

and whether prior convictions meet the ACCA’s separate offenses requirement.

United States v. Sneed, 600 F.3d 1326, 1330 n.5 (11th Cir. 2010) (separate offenses);

United States v. James, 430 F.3d 1150, 1153 (11th Cir. 2005) (violent felony). Even

if the district court commits a sentencing error, we will not vacate a sentence if that

error was harmless. See United States v. Scott, 441 F.3d 1322, 1329 (11th Cir. 2006).

      A person who violates 18 U.S.C. § 922(g) is subject to a statutory minimum

sentence of 15 years imprisonment if that person has three previous convictions for

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a violent felony or serious drug offense, or both, and the previous offenses were

committed on different occasions. 18 U.S.C. § 924(e)(1). A violent felony is a crime

punishable by more than one year imprisonment, and is a burglary or involves

conduct that presents a serious potential risk of physical injury to another. 18 U.S.C.

§ 924(e)(2)(B). A crime is a burglary under the ACCA if it has the basic elements of

an unlawful or unprivileged entry into, or remaining in, a building or structure, with

the intent to commit a crime. Taylor v. United States, 495 U.S. 575, 599 (1990).

      Two crimes are distinct criminal episodes where some temporal break occurs

between them, and the ACCA enhancement will apply if a criminal had a meaningful

opportunity to desist his activity between crimes even if the crimes are committed in

temporal and physical proximity to one another. United States v. Pope, 132 F.3d 684,

690 (11th Cir. 1998). Distinctions in time and place are usually sufficient to separate

criminal episodes. Id. Ultimately, the successful completion of one crime plus the

subsequent conscious decision to commit another crime makes the second crime

distinct from the first. Id. at 692. As long as crimes are successive, and not

simultaneous, they occur on different occasions for ACCA enhancement purposes.

Id.

      As of 1999, the state of Florida defined “burglary” as entering or remaining in

a dwelling, structure, or conveyance with the intent to commit an offense therein,

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unless the premises were, at the time, open to the public, or the defendant was

licensed or invited to enter or remain. Fla. Stat. § 810.02(1)(a) (1998). It defined

“structure” as a building of any kind that had a roof over it, as well as the curtilage

thereof. Fla. Stat. § 810.011(1) (1998). At the very least, a burglary constituted a

third degree felony that subjected a violator to a maximum sentence of 5 years’

imprisonment. Fla. Stat. § 810.02(4) (1998); Fla. Stat. § 775.082(3)(d) (1998). A

burglary of a structure’s curtilage, under Florida law, presents a serious potential risk

of physical injury to another. United States v. Matthews, 466 F.3d 1271, 1275-76

(11th Cir. 2006).

      In this case, 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. Bargeron stipulated to a 1999 Florida conviction for burglary of a

structure. Burglary of a structure, at the time of Bargeron’s offense, constituted a

generic burglary to the extent the crime involved a building because it criminalized

the unlawful entering or remaining in a building with the intent to commit an offense

therein. Compare Fla. Stat. 810.02(1)(a) (1998) with Taylor, 495 U.S. at 599. To the

extent the offense involved the curtilage of a building, it involved conduct that

presented a serious potential risk of physical injury to another. See Matthews, 466

F.3d at 1275-76. And at minimum, a Florida burglary offense was punishable by up

                                           4
to 5 years imprisonment. See Fla. Stat. § 810.02(4) (1998); Fla. Stat. § 775.082(3)(d)

(1998). Consequently, regardless of whether the offense involved a building or its

curtilage, burglary of a structure qualified as a “violent felony.”

      Moreover, Bargeron’s burglary offense occurred on a different occasion than

his two trafficking offenses. It occurred at least four years prior to his trafficking

offenses, giving him ample time to desist in his criminal activity. Further, a

conviction for the burglary offense separated it from the trafficking offenses. Thus,

the successful completion of Bargeron’s burglary offense, in conjunction with his

subsequent decision to commit two trafficking offenses, rendered the burglary offense

a distinct criminal episode in relation to the trafficking offenses. See Pope, 132 F.3d

at 692.

      Finally, Bargeron does not argue on appeal that the district court erred by

concluding that his two trafficking convictions qualified as ACCA predicate

convictions for enhancement purposes, and has abandoned any claim of error. See

United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). Bargeron,

therefore, had three qualifying prior convictions even if his conspiracy conviction is

disregarded, and was subject to the ACCA 15-year statutory minimum sentence.

      AFFIRMED.




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