                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4847


UNITED STATES OF AMERICA,

                Plaintiff − Appellee,

           v.

RUSSELL JAVON LINNEY,

                Defendant − Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:13-cr-00065-RLV-DCK-1)


Argued:   March 22, 2016                  Decided:   April 26, 2016


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


Affirmed by published opinion.       Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Keenan joined.


ARGUED: Chiege Ojugo Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU
OKWARA, Charlotte, North Carolina, for Appellant. Amy Elizabeth
Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.     ON BRIEF: Jill Westmoreland Rose,
Acting United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
WILKINSON, Circuit Judge:

     In this case we must determine whether two burglaries that

served   as   part     of   the    predicate   for    Russell    Linney’s     Armed

Career Criminal Act (“ACCA”) sentencing enhancement occurred on

different     occasions.     See    18    U.S.C.    § 924(e)(1).   The   district

court ruled that the burglaries did in fact occur on different

occasions. We now affirm.

                                          I.

     On August 8-9, 2013, Linney and two companions engaged in a

crime spree that started with a pair of burglaries and ended

with a high-speed police chase. During the chase, Linney drove

the getaway car. When the pursuing officers eventually captured

Linney and his companions, they learned that Linney had been in

possession of a 9-mm handgun, but had one of his companions toss

it out the window during the chase. The officers also found a 9-

mm magazine clip in Linney’s pocket.

     On August 21, 2013, a federal grand jury charged Linney

with being a felon in possession of a firearm under 18 U.S.C.

§ 922(g)(1). On February 19, 2014, Linney pled guilty to the

charge without a plea agreement.

     In anticipation of Linney’s sentencing hearing, a probation

officer prepared a presentence report (“PSR”). The PSR took note

of   three     North    Carolina         burglary    convictions     Linney      had

previously     received     and    accordingly      classified     Linney   as    an

                                           2
armed career criminal under the ACCA -- a classification that

came    with    a     fifteen-year      mandatory       minimum      sentence.       After

considering the ACCA enhancement and all other relevant factors,

the PSR recommended a sentence for Linney that included 188 to

235 months of incarceration.

       Linney objected to the PSR, arguing that two of the three

burglaries noted in the PSR occurred on the same occasion and

thus both could not be used to support the ACCA enhancement. The

government       responded      by     contending       that,      although    the     two

burglaries occurred on the same night and in close proximity,

they were in fact separate criminal episodes. Linney and the

government then submitted the state court records from the two

burglary       convictions      to   support        their    respective       arguments.

These records include the indictments, the plea transcript, the

judgment, and an accompanying restitution worksheet.

       The indictments provide the following details about the two

burglaries. The first indictment charges Linney with “break[ing]

and enter[ing] the dwelling house of Teresa Cornacchione, which

was located at 319 North Oakwood Drive” in Statesville, “between

the nighttime hours of 8:00 p.m. and 10:00 p.m.,” on December

31,    2009.    The    indictment      also       alleges   that   Linney     stole    Ms.

Cornacchione’s         guitar    and    television.         J.A.    155.    The   second

indictment charges Linney with “break[ing] and enter[ing] the

dwelling house of James Wilson, which was located at 320 North

                                              3
Oakwood Drive” in Statesville, “between the nighttime hours of

7:00 p.m. and 10:00 p.m.,” on December 31, 2009. In contrast to

the    Cornacchione        indictment,        the    Wilson      indictment         does   not

allege that Linney stole anything from Mr. Wilson’s home. J.A.

156.

        The plea transcript submitted to the district court shows

that    Linney      pled     guilty    to     both       of   the    December       31,    2009

burglaries       at    the    same     time.        It    also      shows     that     Linney

simultaneously pled guilty to a slew of other crimes, including

a burglary that occurred on December 9, 2010 (this burglary was

used    as   the      requisite       third    violent        felony        conviction     for

Linney’s     ACCA      enhancement),        seventeen         breaking        and    entering

offenses, two attempted breaking and entering offenses, and one

possession of a stolen vehicle offense. J.A. 158-62.

       The state court issued a consolidated judgment covering the

three    burglary      convictions.         Both     this     judgment       and    the    plea

transcript provide that Linney was to pay restitution for his

crimes. J.A. 151, 161. The judgment states that the restitution

was to be joint and several with codefendants as noted on an

accompanying          restitution       worksheet,            which     was        explicitly

incorporated into the judgment by reference. J.A. 150-51.

       The   restitution        worksheet          in     turn      lists    20     different

victims      from      Linney’s       various        offenses,         along        with   the

restitution owed to each. J.A. 266-72. The restitution worksheet

                                              4
also includes a box below each victim’s name, noting whether

another person was jointly and severally liable with Linney for

the    restitution     owed    to    that   victim.      If   another     person   was

jointly and severally liable, the box would be checked and the

other person’s name would be noted. Ms. Cornacchione is listed

as a victim in the restitution worksheet, but the box below her

name remains unchecked, and no other person’s name is noted. Mr.

Wilson is not listed as a victim in the restitution worksheet at

all. J.A. 266-72.

       Back before the district court, Linney contended that the

various state court records undermined the government’s argument

that the two December 31, 2009 burglaries occurred on different

occasions.    Although        he    acknowledged    that      the   burglaries     had

different victims, Linney pointed out that the burglaries were

committed    at     neighboring      houses     during   a    largely     overlapping

three-hour time period, and that they shared the same nature and

objective. Moreover, Linney argued that the mere thirty feet

separating the two houses did not allow him to make a conscious

and knowing decision to commit the second burglary. Furthermore,

Linney claimed that the joint and several liability provisions

in the judgment and accompanying restitution worksheet suggest

that   he   acted    with     an   accomplice     during      the   two   burglaries,

which would mean that he may have only burglarized one of the

houses while his accomplice burglarized the other. Linney thus

                                            5
concluded    that     the   government         had    not     shown       that   the    two

burglaries occurred on different occasions.

      The government responded by arguing that the December 31,

2009 burglaries involved different victims and different street

addresses, and were thus distinct criminal episodes. And as to

the question of an accomplice, the government noted that Linney

was charged individually in the two indictments, and suggested

that the provisions stating that restitution was to be joint and

several   were   perhaps       an   “oversight”        or   made     in    reference     to

“another case.” J.A. 60-63.

     The district court agreed with the government. It found

that the two burglaries involved different victims, different

locations,   and     different      times.      J.A.    65.    The    district         court

further found that any evidence of an accomplice derived from

the various restitution records did “not rise to the level of a

preponderance       of   the    evidence       in    undermining          the    otherwise

pertinent facts about the two offenses in question, namely that

[Linney] was charged as a principal by himself[] [and] convicted

by himself,” without any reference to another person in the two

indictments. J.A. 67-68. The district court thus concluded that

any evidence from the restitution provisions was “insufficiently

probative” to sustain Linney’s objection, and ruled that the

government had proved that the three North Carolina burglaries

supporting the ACCA enhancement occurred on different occasions.

                                           6
       The district court then sentenced Linney to 235 months of

incarceration. Linney timely appealed, challenging the district

court’s       ruling   that    the    two        December   31,     2009   burglaries

occurred on different occasions.

                                           II.

                                            A.

       A   defendant     found       guilty       of   violating     the   felon     in

possession prohibition, 18 U.S.C. § 922(g)(1), is subject to the

ACCA fifteen-year mandatory minimum sentencing enhancement if he

has    three     previous     “violent      felony”     convictions.       18    U.S.C.

§ 924(e)(1). No one disputes that each of Linney’s three North

Carolina burglaries constitutes a “violent felony.” For Linney

to    receive    the   ACCA    enhancement,        however,   each    of   the    three

burglaries must also have been “committed on occasions different

from    one     another.”     Id.    The   government       bears    the   burden    of

proving that the burglaries occurred on different occasions by a

preponderance of the evidence. United States v. Span, 789 F.3d

320, 324 (4th Cir. 2015) (citing United States v. Archie, 771

F.3d 217, 223 (4th Cir. 2014), cert. denied, 135 S. Ct. 1579

(2015)).

       We review de novo the district court’s ruling that Linney

committed the three predicate burglaries on different occasions.

Id. at 325. But we review for clear error the district court’s

factual findings made incident to this ultimate ruling. Id.

                                            7
                                          B.

      To prove that each offense was committed on a different

occasion, the government must show that each offense arose out

of a “separate and distinct criminal episode.” United States v.

Boykin, 669 F.3d 467, 470 (4th Cir. 2012) (emphasis in original)

(quoting United States v. Carr, 592 F.3d 636, 640 (4th Cir.

2010),   cert.    denied,     562       U.S.       844     (2010)).     That    is,   each

predicate offense must have “a beginning and an end,” such that

they each “constitute an occurrence unto themselves.” Carr, 592

F.3d at 640 (quoting United States v. Letterlough, 63 F.3d 332,

335 (4th Cir. 1995)).

      We have come to rely on five factors to determine whether

predicate ACCA offenses were committed on different occasions:

(1)   whether     the    offenses         “arose         in     different      geographic

locations”;      (2)    whether        “the       nature      of     each   offense   was

substantively     different”;       (3)       whether         each   offense    “involved

different victims”; (4) whether each offense “involved different

criminal objectives”; and (5) whether “the defendant had the

opportunity after committing the first-in-time offense to make a

conscious and knowing decision to engage in the next-in-time

offense.” Span, 789 F.3d at 328 (quoting Carr, 592 F.3d at 644).

Importantly, these five factors may be considered “together or

independently” and the “strong presence” of any one factor “can

dispositively     segregate       an    extended         criminal      episode    into   a

                                              8
series of separate and distinct episodes.” Id. (quoting Carr,

592 F.3d at 644).

       In undertaking this five-factor analysis, courts rely on

“Shepard-approved          sources.”       Span,   789   F.3d    at     326     (citing

Shepard v. United States, 544 U.S. 13 (2005)). In cases such as

this that involve prior convictions based on guilty pleas, these

sources consist of “conclusive judicial records” such as the

indictment, judgment, any plea agreement, the plea transcript or

other comparable record confirming the factual basis for the

plea, id. at 326-27, and any document “explicitly incorporated”

into one of the foregoing. United States v. Harcum, 587 F.3d

219,       223-24   (4th   Cir.   2009),     abrogated    on    other    grounds    as

stated in, United States v. Aparicio–Soria, 740 F.3d 152, 155–56

(4th Cir. 2014). *

       Linney       does   not   dispute    the    existence    of    his     predicate

offenses. See Span, 789 F.3d at 326-27 (citing United States v.

Washington, 629 F.3d 403 (4th Cir. 2011)). Linney also does not

suggest that the district court erroneously identified the five

factors used to make the different occasions determination or

       *
       The “plea transcript” in this case differs from the
document commonly called a “plea transcript” in federal
practice. In this case, the “plea transcript” or “transcript of
plea” is a North Carolina judicial record that contains the
details of the defendant’s plea. It is completed by the parties
and signed by the defendant. J.A. 158-62. We have previously
indicated that this judicial record is a Shepard-approved
source. See Span, 789 F.3d at 324 n.2, 326-27.


                                            9
improperly       relied    on    non-Shepard-approved           sources.      He    instead

contends    that     the   district      court     erred       in   applying       the   five

factors     to   the   two      December    31,    2009    burglaries.        As    he    did

below, Linney argues that the government proved only one of the

five    factors.       Specifically,         Linney       claims       that        the   two

burglaries        occurred       at   the        same     location,      because          the

burglarized houses were only thirty feet apart. He also claims

that the nature and objective of each burglary was the same. And

although Linney concedes that the burglaries involved different

victims, he argues that the close proximity of the two houses

prevented him from making a conscious and knowing decision to

engage in the second burglary.

       We   cannot     accept     this     view.    It    is    undisputed      that     the

indictments show that the burglaries occurred at two distinct

street addresses, which means that they occurred at different

geographic locations. The burglary of Ms. Cornacchione’s house

occurred at 319 North Oakwood Drive while the burglary of Mr.

Wilson’s house occurred at 320 North Oakwood Drive. And although

Ms. Cornacchione’s house and Mr. Wilson’s house may stand only

thirty feet apart, we agree with the district court that this

distance     gave      Linney     a   sufficient         opportunity       to      evaluate

whether to commit another crime. Furthermore, Linney concedes

that Ms. Cornacchione and Mr. Wilson were separately victimized

by the two burglaries.

                                            10
       Linney      may    be     correct    to    claim       that    the    two    burglaries

shared the same nature and criminal objective, but the district

court did not rely on these factors -- and it did not need to.

As noted, sometimes the “strong presence” of just one factor can

“dispositively           segregate    an    extended          criminal       episode    into   a

series of separate and distinct episodes.” Span, 789 F.3d at 328

(quoting Carr, 592 F.3d at 644). Here the district court did not

factually err in finding at least three of the five factors. It

also   did    not     err      legally     in     concluding         that    the    government

proved by a preponderance of the evidence that the two December

31, 2009 burglaries occurred on different occasions.

       Indeed, when the facts of Linney’s case are compared to our

precedent in this area, it is clear that Linney’s arguments were

properly weighed and found wanting. Most pertinent is our recent

decision      in    Carr.      There,      the    defendant          broke    into     thirteen

storage units located at a single address. Carr, 592 F.3d at

638. The district court ruled that each of the thirteen break-

ins occurred on different occasions for purposes of the ACCA

enhancement.        Id.     at     639.    We     affirmed       the     district      court’s

ruling,      noting       that    although       the    break-ins        shared      the   same

nature     and     criminal        objective,          they    occurred        at    different

locations,       involved        different       victims,       and    the    space     between

each storage unit gave the defendant an opportunity to decide

whether to engage in the subsequent break-in. Id. at 645.

                                                 11
       Were    we    to    accept    Linney’s        argument,    we   would    need    to

somehow merge Ms. Cornacchione, Mr. Wilson, and their respective

houses together. This we simply cannot do. Although different

victims       and    obvious     physical      boundaries        may   not   always     be

required to support a different occasions determination (e.g.,

breaking into a single victim’s car and house may constitute

different occasions, or a burglarizing adjacent apartment units

may constitute different occasions), the uncontroverted record

shows that these hallmarks of separateness were present here. We

cannot accept Linney’s invitation to turn a blind eye to the

separate nature of his burglaries and thereby effectively rule

that two crimes are no worse than one.

                                            III.

       Linney contends, however, that his case contains a wrinkle

absent in Carr and similar cases. Specifically, Linney claims

that    the        joint   and      several        liability     provisions     in     the

consolidated         judgment      and     accompanying        restitution     worksheet

indicate that he committed the two December 31, 2009 burglaries

with an accomplice.

       It     is    true    that     the     presence     of     an    accomplice      can

complicate the different occasions analysis. See Carr, 592 F.3d

at 643 n.5. For instance, if Linney worked with an accomplice on

the night of December 31, 2009, Linney may have burglarized one

of the houses while his accomplice simultaneously burglarized

                                              12
the other. See Span, 789 F.3d at 329. This coordinated criminal

operation would likely result in two convictions for Linney.

Whether     it       would    satisfy      the        different      occasions         analysis

required    for       application     of    the        ACCA    enhancement        is    another

question.

      The record in this case, however, does not support Linney’s

suggestion of an accomplice. As the district court noted, the

Shepard-approved           sources,     including           the    indictments         and   the

judgment,       show    that    Linney      was       charged      alone    and    convicted

alone. The district court was within bounds to rely on these

documents       to    find    that    Linney         committed      the    two    burglaries

alone.

      Yet Linney points out that the judgment and accompanying

restitution worksheet also provide that he was to be jointly and

severally liable to pay restitution for his burglaries. And he

notes that the restitution worksheet even names a Mr. Patrick

Wagner     as    a     codefendant         in        many     of    his    crimes.       Linney

accordingly contends that he committed the two December 31, 2009

burglaries with an accomplice.

      But Linney fails to note that, although these documents

suggest that he sometimes committed his crimes in league with an

accomplice, they also suggest that he acted alone on the night

of   December        31,     2009.   The    codefendant            box    adjacent      to   Ms.

Cornacchione’s name on the restitution worksheet is unchecked,

                                                13
and the line used for listing another person’s name is blank.

Mr. Wilson’s name is absent from the restitution worksheet, but

this absence makes sense in light of the fact that the Wilson

indictment does not allege Linney actually stole anything from

Mr.    Wilson’s        house.    All    in    all,    these    sundry     details    only

support the district court’s finding that Linney committed the

December 31, 2009 burglaries alone.

       The briefing and argument in this case revealed that Linney

made a diligent effort to find some positive proof in the state

court    records       showing     that      he    worked   with     an   accomplice    on

December 31, 2009. There does not appear to be any such proof.

Linney    is     thus    left     to    speculate,     asking      the    government    in

essence to prove the absence of an accomplice. But proving a

negative is not a quest the government need undertake. Certainly

it was not clearly erroneous for the district court to find

based     on     the     Shephard-approved           sources    that      Linney    alone

committed the two December 31, 2009 burglaries during the three-

hour time span alleged in the two indictments.

       Finally,        contrary    to     Linney’s     protestations,       our    recent

decision in Span is readily distinguishable. There, as in this

case, the defendant claimed that he worked with an accomplice,

and that the presence of an accomplice meant his predicate ACCA

offenses may not have occurred on different occasions. Unlike

this     case,    however,        the     indictments,        plea    transcript,      and

                                              14
judgment from the state court in Span listed contradictory dates

for the various offenses. Indeed, “[n]o single offense date for

any [of the] predicate robbery conviction[s] [was] consistent

across all three sources.” Span, 789 F.3d at 325-26. Moreover,

three of four offenses at issue occurred at the same location.

Id. at 329. Owing to these deep contradictions in the record, we

held that the government had failed to prove that the three

offenses      had   occurred      on    different     occasions.      Unlike   the

situation in Span, nothing in the record before us calls into

serious question the district court’s determination that Linney

alone    committed    the      two     December     31,   2009    burglaries    on

different occasions.

                                         IV.

     Linney’s receipt of the ACCA enhancement gave the district

court a sentencing guidelines range of 188 to 235 months of

incarceration. The district court sentenced Linney to the top

end of that range -- 235 months. Linney cursorily suggests that

this sentence is substantively unreasonable. We disagree. It was

entirely   proper    for    the      district     court   to   note   that   Linney

harmed   31     different   victims      during     his   many   offenses;     that

Linney’s most recent pair of burglaries ended with a dangerous

police chase; and that Linney appeared to be the leader in at

least    this    latest    chapter     of   his    long   history     of   criminal



                                         15
activity. Accordingly, it was well within the district court’s

discretion to give Linney the sentence he received.

     The judgment is

                                                      AFFIRMED.




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