                                                            [DO NOT PUBLISH]




               IN THE UNITED STATES COURT OF APPEALS
                                                           FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                        APRIL 9, 2008
                                                     THOMAS K. KAHN
                               No. 07-10621
                                                          CLERK
                          ________________________

                   D. C. Docket No. 06-00044-CR-4-RH/WCS

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                     versus

JUAN CARLOS RICHARDSON,

                                                       Defendant-Appellant.

                          ________________________

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

                                 (April 9, 2008)

Before BIRCH, CARNES and COX, Circuit Judges.

PER CURIAM:

      Juan Carlos Richardson appeals the mandatory life sentence imposed upon

him due to a sentencing enhancement based on two prior felony drug offenses.
Richardson argues that two drug sales, which occurred within one hour and fifteen

minutes of each other on a single afternoon but were prosecuted as separate

offenses, ought not to have counted as two prior convictions for the purpose of 21

U.S.C. § 841(b)(1)(A). We AFFIRM.1

                                    I. BACKGROUND

       A federal grand jury indicted Richardson in August 2006, charging him with

seven offenses including: (Count 1) conspiracy to manufacture, distribute, and

possess with intent to distribute cocaine and more than fifty (50) grams of crack

cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(C), 841(b)(1)(A)(iii), and 846;

(Counts 2-4) distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1)

and 841(b)(1)(C); (Count 5) possession with intent to manufacture and distribute

cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); (Count 6)

possession of a Smith &Wesson .38-caliber revolver in furtherance of the drug

trafficking crime alleged in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A); and


       1
         In August 2007, the district court granted a motion filed by the government pursuant to
Federal Rule of Criminal Procedure 35(b) and entered an order reducing Richardson’s sentence
to a total of 204 months. Because this appeal was pending at the time, the district court lacked
jurisdiction to consider the government’s Rule 35 motion. See United States v. Russell, 776
F.2d 955, 956 (11th Cir. 1985) (per curiam); see also United States v. Turchen, 187 F.3d 735,
743 (7th Cir. 1999); United States v. Batka, 916 F.2d 118, 120 (3d Cir. 1990). Accordingly, the
order reducing sentence is a nullity and of no legal effect. Therefore, the original judgment and
commitment order still presents an “active case or controversy” as to whether the district court
erred in sentencing Richardson to a mandatory minimum sentence of life in prison. See Soliman
v. United States ex rel INS, 296 F.3d 1237, 1242 (11th Cir. 2002) (per curiam) (quotation and
citation omitted).

                                                2
(Count 7) being a previously convicted felon in possession of that firearm and its

ammunition, in violation of 18 U.S.C. § 922(g)(1) and 924(e)(1). Subsequent to

Richardson’s initial appearance and arraignment, the government filed a notice of

his prior convictions as required by 21 U.S.C. §§ 851, 841(b)(1)(B) and (b)(1)(C).

The government’s Information and Notice of Prior Convictions asserted that, for

enhancement under 21 U.S.C. § 841(b)(1)(A), it would prove that Richardson had

twice been convicted on 1 April 1999, in Gadsden County, Florida, “of the offense

of Sale of Cocaine.” R1-16 at 1. The government listed the case number for each

conviction: Case Number 99-66-CFA for the first and Case Number 99-69-CFA

for the second. Id.

      In November 2006, Richardson pled guilty to all seven counts in the

indictment pursuant to a plea agreement. This agreement set forth the potential

sentences he faced as to each count, including a mandatory minimum term of life

as to Count 1, and a maximum term of 30 years as to each of Counts 2-5 in the

event the court determined that he had the requisite prior qualifying felony drug

convictions under 21 U.S.C. §§ 841 and 851. The agreement did not state that the

April 1999 convictions would in fact so qualify.

      In preparing the Presentence Investigation Report (“PSR”), the probation

officer assumed that the enhanced penalties under § 841(b)(1)(A) applied and



                                          3
determined that the applicable Guidelines range for Count 1 was life imprisonment

because the mandatory minimum sentence was greater than the maximum term

under the Guidelines. Richardson notified the probation office of his intention to

object to the enhanced penalties applied to his sentence under 21 U.S.C.

§§ 841(b)(1)(A) and 851. The probation officer noted that if the district court

determined that Richardson had only one prior conviction for purposes of the

statute, his Guidelines range would be 262-327 months.

      After pleading guilty, but before sentencing, Richardson asserted that his

two previous convictions constituted “a single criminal episode” and should

therefore be counted as only one prior conviction. R1-33 at 1. He stated that on 30

December 1998, law enforcement officers had purchased ten dollars worth of crack

cocaine from him at his home. The same officers had then returned approximately

one hour and fifteen minutes later and purchased another ten dollars worth of crack

cocaine. The state filed a separate information for each of the two sales, and

Richardson pled guilty to both. Richardson contended, however, that the prior

convictions were a single criminal episode because, he asserted, the law

enforcement officers left his home after making the first crack cocaine purchase to

verify that the substance obtained was cocaine and, when they were convinced that

it was, returned to Richardson’s home one hour and fifteen minutes later to make



                                          4
the second purchase. Consequently, Richardson concluded, the two convictions

should be considered as one.

      The government argued that the prior convictions constituted two separate

offenses, noting that multiple sales, made close in time and to the same person,

were common for crack cocaine dealers. The government added that, even if the

two drug sales had been charged in the same information, they would still have

counted as separate convictions. Finally, the government asserted that the purpose

of the enhancement statute would be met if Richardson’s two convictions were

treated separately because it would punish him for continually engaging in the

same criminal conduct.

      At the sentencing hearing, Richardson again argued that the two prior drug

offenses should be treated as a single episode and, therefore, not be counted

separately at sentencing. He contended that, due to the temporal proximity of the

two sales, it was “like law enforcement coming to the door, making a buy and

standing right there and asking them for the second buy.” R4 at 5. The district

court, having reviewed the pleadings of the parties, and heard the arguments of

counsel, determined that the two prior convictions counted as separate drug felony

offenses under the meaning of § 841. The court explained that “the statute

Congress adopted, at least as it has been interpreted by the Eleventh Circuit and,



                                          5
for that matter, other circuits, is that it turns on whether these are separate crimes

rather than a single episode, and my conclusion is that these were separate

offenses, two completely separate sales.” R4 at 13. Accordingly, the district court

sentenced Richardson to the mandatory minimum sentence of life imprisonment on

Count 1 and 262 months concurrent imprisonment on Counts 2-5 and 7, and to 60

months consecutive imprisonment on Count 6.

      On appeal, Richardson argues that the government failed to prove that his

two 1999 crack cocaine offense convictions constituted two discrete criminal

convictions. Richardson notes that the two sales occurred only one hour and

fourteen minutes apart and involved the same law enforcement officers, defendant,

location, conduct, substance, quantity, arrest, and sentence. He considers the

government’s decision to prosecute each sale separately, resulting in two

convictions, to be “sentence manipulation” and urges us to consider that

“manipulation” in determining whether the government demonstrated that he is the

kind of recidivist Congress intended to target with the mandatory life sentence.

Appellant’s Br. at 24.

                                  II. DISCUSSION

      Title 21 U.S.C. § 841(b)(1)(A) provides that a defendant convicted under

that section who has previously been convicted of two or more felony drug



                                            6
offenses shall be sentenced to life imprisonment. For a defendant to be subject to

this enhanced sentence, the government must file, prior to the entry of a guilty plea

or the commencement of trial, an information stating the prior convictions relied

upon to support the enhancement. 21 U.S.C. § 851(a)(1). If the defendant denies

the validity of a prior conviction, or disputes any of the details of a prior

conviction, he must file a written response challenging the same. 21 U.S.C.

§ 851(c)(1). The government has the burden of proof beyond a reasonable doubt

on any issue of fact raised by the defendant. Id.; United States v. Sanchez, 138

F.3d 1410, 1416 (11th Cir. 1998). Here, Richardson has not disputed the facts of

the April 1999 convictions as recited by the government, and therefore, the only

remaining issue is the extent to which those convictions are related for the purpose

of 21 U.S.C. § 841.2

       “Because the question of whether prior convictions [a]re related . . . for the

purposes of [21 U.S.C. §] 841(b)(1)(A) involves a factual inquiry, we review the



       2
        Richardson also argues that the government was required to prove “beyond a reasonable
doubt” that the two prior convictions were unrelated. He contends that while the government,
under Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), is not required
to prove the existence of prior convictions beyond a reasonable doubt, that holding does not
extend to facts about prior convictions, such as their relatedness, and that the government must
therefore prove relatedness beyond a reasonable doubt. This argument is unavailing. The facts
of Richardson’s prior convictions are not in dispute; both parties agree with respect to the
essential underlying facts. Rather, the dispute in this case centers on the legal question of
whether, under § 841(b)(1)(A), as interpreted by our circuit, those facts render Richardson’s
prior convictions related.

                                               7
district court’s decision for clear error.” United States v. Rice, 43 F.3d 601, 606

(11th Cir. 1995). The rule in our circuit is that “if the prior convictions result[]

from acts forming a single criminal episode, then they should be treated as a single

conviction for sentence enhancement under section 841(b)(1)(A).” Id. at 605.

Acts that “are separate in time and locale and [are] acts requiring separate planning

and execution” will not constitute “related convictions.” Id. at 608 (quotation

omitted).

      In Rice, the district court had enhanced the defendant’s sentence based on

three prior convictions for drug-related conduct from the fall of 1978. Id. at 603-

04. On appeal, the defendant argued, inter alia, that his convictions should have

been counted as a single conviction because, although he had been convicted and

sentenced by three separate courts for separate incidents that involved different

conduct and occurred on different days in different states, “he [had] received

concurrent sentences which he served in a single state institution.” Id. at 606. We

rejected this argument, reasoning that “[t]o hold otherwise would be overbroad and

fail to promote the actual purpose of sentence enhancement under

section 841(b)(1)(A)–to punish recidivism.” Id. Nevertheless, drug distribution

offenses do not constitute a common scheme or plan simply because they were part

of a single conspiracy or the focus of a single investigation. See id. at 607-08.



                                            8
“Because the best marker of recidivism is repetition over time, . . . convictions

which occur on different occasions or are otherwise distinct in time may be

considered separate offenses under section 841(b)(1)(A).” Id. at 608; see also

United States v. Griffin, 109 F.3d 706, 708 (11th Cir. 1997) (per curiam) (holding

that a sentence was properly enhanced under § 841(b)(1)(A) where the two prior

felony convictions relied upon by the district court occurred six days apart and

were consolidated for sentencing).3

       Here, the two offenses at issue were separate in time, even though only by

just under ninety minutes. Further, after Richardson and the buyer completed the

first transaction – once cocaine and money had both exchanged hands – the buyer

completely left the premises. For the second transaction, after an hour and

fourteen minutes had passed, the buyer returned and a whole new transaction took

place. This transaction involved the exchange of further drugs and further money,

which would have required “separate planning and execution” from the first. See

Rice, 43 F.3d at 608. Thus, the district court did not clearly err in concluding that




       3
          Our interpretation of § 841(b)(1)(A) comports with those of our sister circuits. See, e.g.,
United States v. Barr, 130 F.3d 711, 712 (5th Cir. 1997) (involving drug sales on consecutive
days to the same buyer); United States v. Gray, 152 F.3d 816, 821 (8th Cir. 1998) (same). This
judicial construction of § 841 gains further “precedential force” from the fact that it has long
been published and uniformly accepted throughout the country without any attempt by Congress
to alter it. See Watson v. United States, __ U.S. __, __, 128 S. Ct. 579, 585 (2007).

                                                  9
the two purchases gave rise to two distinct offenses for the purposes of §

841(b)(1)(A).4

                                    III. CONCLUSION

       Richardson challenges the mandatory life sentence imposed upon him

pursuant to § 841(b)(1)(A). Because the two prior drug convictions that served as

the basis for the enhancement were discrete criminal acts, we AFFIRM the

judgment of the district court.




       4
         Our conclusion in this case is further supported by our caselaw regarding sentencing
under 18 U.S.C. § 924(e). Unlike 21 U.S.C. § 841(b)(1)(A), § 924(e), which also provides
enhanced sentences for defendants with prior offenses, specifies that those prior offenses must
have been “committed on occasions different from one another.” Even under that explicit
limitation, we have found offenses taking place on the same day not to be part of a single
criminal episode for the purpose of sentencing under § 924(e). See, e.g., United States v. Spears,
443 F.3d 1358, 1360 (11th Cir. 2006) (per curiam) (defendant previously convicted of having
first robbed two people in a parking lot and then, on the way to his car, only two minutes later,
having robbed a third, was credited with two unrelated prior robbery offenses for the purposes of
§ 924(e)); see also United States v. Pope, 132 F.3d 684, 691 (11th Cir. 1998) (observing that
§924(e) does not require that predicate offenses be separated “by some substantial amount of
time”).

                                               10
