                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4887


UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

           v.

LONNIE EDWARD RUSSELL,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:08-cr-00393-BO-1)


Argued:   October 29, 2010                 Decided:     November 19, 2010


Before TRAXLER,   Chief   Judge,   and   DUNCAN   and    KEENAN,   Circuit
Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: John Stuart Bruce, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellant.    Debra Carroll Graves,
Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellee.    ON BRIEF: George E. B.
Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-
Parker, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Thomas
P. McNamara, Federal Public Defender, Eric J. Brignac, Lauren H.
Brenna, Research and Writing Attorneys, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Lonnie    Edward      Russell    pleaded    guilty   to    possession     with

intent to distribute cocaine, see 21 U.S.C. § 841(a)(1), and

possession of a firearm after having been convicted of a felony,

see 18 U.S.C. § 922(g)(1).               The presentence report recommended

that Russell be sentenced to a mandatory minimum sentence of 15

years    under    the      Armed   Career   Criminal   Act    (“ACCA”),      see   18

U.S.C. § 924(e), based upon his previous state court convictions

for breaking and entering three separate homes.                         One of the

predicate offenses arose out of a crime that occurred on July 6,

1999.     The remaining two predicate offenses arose out of crimes

that occurred on June 22, 1999.

       In August 2009, the district court concluded that the June

22, 1999, offenses were not “committed on occasions different

from one another,” 18 U.S.C. § 924(e)(1), and declined to apply

the ACCA enhancement.              In doing so, the district court found

that    the    June   22,    1999,     predicate   offenses      were    “coincident

break-ins that occurred in sequence on the same day, at or about

the same time, in or about the same place.”                   J.A. 69 (emphasis

added).       The government appealed.

       After the district court sentenced Russell, we issued two

decisions in similar cases, clarifying the factors that courts

must    consider      in    determining     whether    predicate        crimes   were

“committed on occasions different from one another” for purposes

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of § 924(e)(1), as well as the government’s burden to establish

such predicate offenses.                       See United States v. Carr, 592 F.3d

636 (4th Cir. 2010), cert. denied, ___ U.S. ___, 79 U.S.L.W.

3197 (Oct. 4, 2010); United States v. Tucker, 603 F.3d 260 (4th

Cir.     2010).             Although          no    one       factor        is     dispositive,      one

consideration              is     whether          the       prior        crimes    were      committed

simultaneously or sequentially.                              See Carr, 592 F.3d at 642.

       In    light         of     the    inconsistency               in    the     district      court’s

conclusion and the fact that neither the district court nor the

parties had the benefit of our decisions in Carr and Tucker, we

vacate      the    sentence           and     remand         for     resentencing         under    those

precedents.           If        the    government            can     demonstrate,          based     upon

Shepard-approved documents, see Shepard v. United States, 544

U.S. 13, 16 (2005), that the June 22, 1999, convictions were

committed        on     occasions        different            from        one    another,     then   the

district      court         can       apply    the       ACCA      enhancement.            See     United

States      v.    Maroquin-Bran,              587        F.3d      214,     218    (4th    Cir.    2009)

(vacating         and      remanding          for    resentencing               where   the    district




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court did not have the benefit of “a proper interpretation” by

this court of a sentencing enhancement provision). *



                                              VACATED AND REMANDED




     *
        We deny Russell’s motion to dismiss the government’s
appeal.   Unlike in the case of United States v. Guevara, 941
F.2d 1299 (4th Cir. 1991), the government explicitly retained
its right to appeal in its plea agreement with Russell.



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