            Case: 11-11640    Date Filed: 08/24/2012   Page: 1 of 8

                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                        ________________________

                              No. 11-11640
                          Non-Argument Calendar
                        ________________________

                D.C. Docket No. 8:10-cr-00148-VMC-MAP-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

BRANDON ALLEN,

                                                           Defendant-Appellant.

                       __________________________

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

                              (August 24, 2012)

Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Brandon Allen appeals the sentence imposed following his conviction for
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possession with intent to distribute five grams or more of crack cocaine and less

than fifty grams of marijuana, in violation of 21 U.S.C. § 841, and possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e).

After a thorough review of the record, we affirm.

                                              I.

       Allen was indicted for numerous drug offenses and a firearm offense. He

pleaded guilty to possession with intent to distribute crack cocaine and marijuana

(Count 5) and possession of a firearm by a convicted felon (Count 7). Based on

the amount of crack involved, Allen faced a mandatory minimum sentence of five

years’ imprisonment on Count 5. On Count 7, Allen faced a mandatory minimum

sentence of fifteen years’ imprisonment.

       Prior to sentencing, the probation officer prepared a presentence

investigation report (PSI), calculating Allen’s guideline range based on an

adjusted offense level of 34 under the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e) and U.S.S.G. § 4B1.4, because Allen had three prior felony drug

convictions that were committed on different occasions from one another.1 The



       1
         The PSI identified Allen as both a career criminal under § 4B1.1 and an armed career
criminal under the ACCA, § 4B1.4. Allen does not challenge his career-offender status. Thus,
he has abandoned any argument with respect to that issue. United States v. Smith, 416 F.3d
1350, 1354 (11th Cir. 2005).

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probation officer identified the predicate offenses as cocaine sales on February 4

and February 7, 2005, and possession with intent to distribute cocaine in 2008.2

Allen’s criminal history category was VI whether based on Allen’s criminal

history points or the category assigned under the ACCA. With a total offense

level of 31 after a reduction for acceptance of responsibility, the applicable

guideline range was 188 to 235 months’ imprisonment. Allen objected to the

application of the ACCA, arguing that the two 2005 drug sales were sentenced on

the same day and there was no evidence that the two crimes were committed on

different occasions. Thus, he argued, they should count only as a single offense

for purposes of the ACCA.

      At sentencing, the government submitted the charging documents for the

two 2005 offenses. The district court noted that, although the cocaine sales were

two counts in the same indictment and were sentenced on the same day, the crimes

occurred three days apart. Accordingly, the court concluded that the two sales

were distinct offenses under the ACCA.

      Allen then argued that he should be sentenced under the newly-enacted Fair




      2
          Allen does not dispute that the 2008 conviction qualifies as a predicate offense.


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Sentencing Act (FSA),3 which would have removed the five-year mandatory

minimum sentence he faced for Count 5 and lowered the base offense level and

corresponding guideline range he faced. The court declined to apply the FSA and

sentenced Allen to 188 months’ imprisonment.

         On appeal, Allen raises two issues: First, he argues that he did not qualify as

an armed career criminal because he did not have three prior convictions for drug

offenses. Second, he argues that the court should have sentenced him under the

FSA. We address each in turn.

                                                   II.

         Allen argues that his two drug sales on February 4 and 7, 2005, do not

qualify as separate predicate offenses under the ACCA because the two sales were

one single criminal episode. He notes that both sales occurred at the same

location, within a short time period, and involved the same drug. He further

asserts that the two sales presumably involved the same confidential buyer or at

least the same investigating officer.

         Under the ACCA, an individual convicted under § 922(g) is subject to a

mandatory minimum fifteen-year sentence if he has three previous convictions for



         3
             Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (effective Aug. 3,
2010).

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

one another.” 18 U.S.C. § 924(e)(1). We review de novo whether crimes were

committed on different occasions within the meaning of the ACCA. United States

v. Canty, 570 F.3d 1251, 1254-55 (11th Cir. 2009). The government bears the

burden of proving that each previous conviction “arose out of a separate and

distinct criminal episode.” United States v. Sneed, 600 F.3d 1326, 1329 (11th Cir.

2010) (citation and internal quotation marks omitted).

      Under § 924(e)’s different-occasions inquiry, a sentencing court must

determine whether “the perpetrator had a meaningful opportunity to desist his

activity before committing the second offense.” United States v. Pope, 132 F.3d

684, 690, 692 (11th Cir. 1998). Although the predicate offenses must be distinct,

even a small difference in time or place distinguishes convictions for purposes of

the ACCA. See Sneed, 600 F.3d at 1330; accord Pope, 132 F.3d at 690 (“Mere

temporal proximity is ordinarily insufficient to merge multiple offenses into a

single criminal episode.”). “[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. “If some temporal break happens

between two offenses,” the offenses are considered distinct. United States v.

Proch, 637 F.3d 1262, 1265 (11th Cir. 2011). “It does not matter for § 924(e)

                                         5
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purposes that the legal consequences of a defendant’s separate criminal acts were

imposed upon him on the same day.” United States v. Wilks, 464 F.3d 1240, 1244

(11th Cir. 2006). The district court is limited in the documents it may review to

determine if the ACCA applies. See, e.g. Shepard v. United States, 544 U.S. 13,

23-26 (2005). The court may consider “the terms of the charging document, the

terms of the plea agreement or transcript of the colloquy between the judge and

defendant in which the factual basis for the plea was confirmed by the defendant,

or . . . some comparable judicial record of this information.” Id. at 26.

      We conclude that the district court properly determined that the two sales

that formed Allen’s 2005 convictions were committed on different occasions. The

charging document showed that the drug sales occurred on two different dates.

Although the government did not present evidence as to what occurred between

the February 4 and February 7 drug sales, the three-day break shows that Allen

“had a meaningful opportunity to desist his activity before committing the

[second] offense.” See Pope, 132 F.3d at 690. Moreover, the temporal break is

enough for the offenses to be considered distinct under the ACCA. See Proch,

637 F.3d at 1265.

                                         III.




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      Allen next argues that the district court erroneously declined to apply the

FSA retroactively to his offenses. He contends that the FSA would have rendered

the mandatory minimum sentence on Count 5 inapplicable and lowered his overall

guideline range.

      We review de novo the district court’s authority to impose a sentence below

the statutory minimum. United States v. Gomes, 621 F.3d 1343, 1345 (11th Cir.

2010), cert. denied, 131 S.Ct. 1833 (2011). If the district court erroneously

concluded that it lacked authority to impose such a sentence, we will vacate and

remand for resentencing unless the party defending the sentence persuades us that

the district court would have imposed the same sentence absent the erroneous

decision. Williams v. United States, 503 U.S. 193, 203 (1992).

      The FSA, which was signed into law on August 3, 2010, adjusted the

amount of drugs applicable to base offense levels for crack offenses and increased

the amount of crack required to trigger certain mandatory minimums. Gomes, 621

F.3d at 1346. There is no dispute that, under the Act, the amount of drugs for

which Allen was responsible would no longer trigger the five-year mandatory

minimum sentence he faced on Count 5. Id. There also can be no dispute that

Allen should have been sentenced under the FSA. See Dorsey v. United States,

567 U.S. __, 132 S.Ct. 2321, 2335 (2012).


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       Nevertheless, we conclude that the court’s error is harmless. Although the

FSA would have lowered Allen’s offense level and guideline range if he had been

sentenced based on the amount of drugs involved, it does not impact his sentence

under the ACCA. Allen’s offense level in this case was 34 under the ACCA

because he possessed a firearm in connection with his drug crime. See U.S.S.G.

§ 4B1.4(b). Thus, even if the court applied the FSA, there would be no change in

Allen’s offense level. Additionally, Allen’s criminal history category remains at

VI under the ACCA, see U.S.S.G. § 4B1.4(c), and based on the number of points

he amassed. Accordingly, because the FSA does not affect Allen’s offense level

or guideline range, the error was harmless.4 See Williams, 503 U.S. at 203.

       AFFIRMED.




       4
          We note that Allen would no longer be subject to the five-year mandatory minimum
sentence on Count 5 under the FSA. But, he still faced a fifteen-year mandatory minimum
sentence on Count 7. The sentence imposed exceeds the five-year mandatory minimum. Thus,
there is no need to remand Allen’s case.

                                             8
