                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0241n.06

                                             Case No. 13-6171

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                              FILED
                                                                                       Mar 31, 2014
UNITED STATES,                                            )                        DEBORAH S. HUNT, Clerk
                                                          )
        Plaintiff-Appellee,                               )
                                                          )        ON APPEAL FROM THE UNITED
v.                                                        )        STATES DISTRICT COURT FOR
                                                          )        THE EASTERN DISTRICT OF
TROY MELLOTT,                                             )        KENTUCKY
                                                          )
        Defendant-Appellant.                              )
                                                          )


        BEFORE: COLE and SUTTON, Circuit Judges; CLELAND, District Judge.*


        SUTTON, Circuit Judge. The federal government charged Troy Mellott with being a

felon in possession of a firearm. He pled guilty to the charge. At sentencing, the district court

determined that he was an armed career criminal, requiring a mandatory minimum sentence of

fifteen years. On appeal, Mellott challenges his sentence. We affirm.

        Under 18 U.S.C. § 924(e)(1), a person who possesses a firearm and has “three previous

convictions . . . for a violent felony” is an armed career criminal subject to a fifteen-year

mandatory minimum. Mellott concedes that he has three previous violent felony convictions:

two for burglary in 1996 and one for breaking and entering in 2004.                      He argues that he



*
 The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting by
designation.
Case No. 13-6171, United States v. Mellott

committed the two burglaries on the same occasion, making him a violent felon just twice over

and making him subject to a ten-year mandatory minimum.

       We disagree. Mellott committed the 1996 burglaries on different occasions. The arrest

records show that the police arrested Mellott for burglary of a dwelling twice—once on April 5,

1996 for a violation on an unspecified date, and once on April 6, 1996 for a violation on April 2,

1996 at 9:30 a.m. The state court indictment charged him with the burglary of a dwelling and

theft of cash on April 1, 1996, and the burglary of the same dwelling and theft of electronics and

other personal property on April 2, 1996—four counts in all. He pled guilty to all four counts.

His two seven-year sentences for the burglary counts and two two-year sentences for the theft

counts ran “concurrently for a total of seven years.” R.12-2 at 4. These records—two burglary

arrests, two burglary counts, two burglary convictions and two burglary sentences—confirm that

Mellott committed two distinct burglaries. “[I]t is possible to discern the point at which the first

offense [was] completed” (at least by midnight on April 1, 1996) “and the subsequent point at

which the second offense beg[an]” (9:30 a.m. on April 2, 1996), establishing that Mellott

committed the burglaries on different occasions. United States v. Hill, 440 F.3d 292, 297 (6th

Cir. 2006).

       To this way of thinking about his sentence, Mellott offers two responses. He first points

to the beginning of the state court judgment, where the court summarized each charge in the

indictment as occurring on “April 1 and 2, 1996.” R.12-2 at 3. Yet, as the district court correctly

explained, Mellott pled guilty to the indictment, which included two charges for two burglaries

on two different dates resulting in the theft of two different sets of property, and his guilty plea

led to two counts of conviction for burglary. The one-sentence summary of the charges in the




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Case No. 13-6171, United States v. Mellott

judgment does not cut against the district court’s finding that Mellott committed the burglaries at

two different times.

       Mellott next points to the end of the state court judgment, where the court set his

sentences to run concurrently.      Yet the consolidation of offenses “for sentencing or for

concurrent sentences” is “immaterial for ACCA enhancement purposes . . . , so long as the

separate offenses for which the defendant was convicted occurred at different times and/or

places.” United States v. Martin, 526 F.3d 926, 939 (6th Cir. 2008).

       Mellott separately questions the district court’s finding that he stole the relevant firearm.

He concedes, however, that this finding and its effect on his guidelines range do not come into

play if the mandatory minimum sentence for armed career criminals applies. It does, making this

argument irrelevant.

       For these reasons, we affirm the judgment of the district court.




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