     Case: 10-10836     Document: 00511633137         Page: 1     Date Filed: 10/14/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 14, 2011
                                     No. 10-10836
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ANTHONY MARTIN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 7:09-CR-35-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Anthony Martin appeals the 327-month sentence
imposed following his guilty plea conviction of being a convicted felon in
possession of a firearm under 18 U.S.C. § 922(g). Martin claims the district
court erred in sentencing him as an armed career criminal under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). He contends that the
government did not submit any evidence establishing that his three predicate
offenses occurred on occasions different from one another and that the district

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 09-10187

court did not make any finding regarding same. Martin alternatively contends
that the “different occasions” factor is an element of the offense that must be
admitted by the defendant or proven beyond a reasonable doubt. Similarly, he
argues that his ACCA sentence violates the Fifth and Sixth Amendments of the
Constitution because the facts establishing that he had three prior convictions
for offenses committed on different occasions were not alleged in the indictment,
proven beyond a reasonable doubt to a jury, or admitted by him. In his final
point of error, Martin asserts that the district court erred by enhancing his
sentence for use or possession of a firearm in connection with a crime of violence.
      As Martin’s claims concerning the district court’s application of the ACCA
were not presented in district court, our standard of review is for plain error.
See, e.g., United States v. Henao-Melo, 591 F.3d 798, 801 (5th Cir. 2009), cert.
denied, 130 S. Ct. 2392 (2010); cf. United States v. Neal, 578 F.3d 270, 272-73
(5th Cir. 2009) (“To preserve error, an objection must be sufficiently specific to
alert the district court to the nature of the alleged error and to provide an
opportunity for correction.”). To establish reversible plain error, Martin must
show a forfeited error that is clear or obvious and that affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 1429 (2009);
Henao-Melo, 591 F.3d at 801. Even if such error is established, we still have
discretion whether or not to correct it, and we generally will do so only if the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See Henao-Melo, 591 F.3d at 802.
      Under § 924(e)(1), a defendant convicted of being a felon in possession of
a firearm is subject to a minimum sentence of 15 years if he has three prior
convictions for “a violent felony or a serious drug offense, or both, committed on
occasions different from one another.” Martin’s sentence was enhanced based
on his four prior Texas convictions for delivery of a controlled substance. The
government established that those convictions were for serious drug offenses
which occurred on separate occasions by providing the indictment, judgments,

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                                   No. 09-10187

and judicial confessions for each offense. See United States v. Fuller, 453 F.3d
274, 279 (5th Cir. 2006); United States v. Barlow, 17 F.3d 85, 89 (5th Cir. 1994).
“Once the Government establishes the fact of a prior conviction based on a guilty
plea, the defendant must prove the invalidity of the conviction by a
preponderance of the evidence.” Barlow, 17 F.3d at 89.
      Martin did not meet this burden. He neither denied that his prior drug
offenses occurred on different occasions nor introduced any evidence, much less
a preponderance, that his offenses occurred simultaneously. Neither did Martin
dispute (1) the existence of his four convictions for delivery of a controlled
substance, (2) that these prior convictions were serious drug offenses, nor (3)
that his guilty pleas in the prior convictions were entered with adequate
procedural safeguards. The district court had ample bases to determine that
Martin’s drug offenses occurred on four different occasions and were separate.
See United States v. White, 465 F.3d 250, 254 (5th Cir. 2006). Therefore, the
district court did not err when it applied the ACCA enhancement.
      As Martin cites no authority for the proposition that the district court
must make an explicit finding on the record that his prior convictions were for
offenses committed on occasions different from one another, we need not and
therefore have not addressed that proposition.         Moreover, contrary to his
argument that the district court relied solely on the presentence report’s
characterization of his prior convictions, the district court had before it Shepard-
approved documents about the prior drug convictions, including the indictment,
judgments, and judicial confessions. See Shepard v. United States, 544 U.S. 13,
26 (2005). As no precedential case requires the district court explicitly to show
or state that it reviewed the relevant documents, Martin has not shown any
error, much less one that is clear or obvious. See Puckett, 129 S. Ct. at 1429.
      Martin also insists that the act of being a career offender is a separate
offense, that the “different occasions” factor is an element of the offense, and that
his enhanced sentence under the ACCA is unconstitutional because the facts

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                                 No. 09-10187

establishing that he had three prior convictions for offenses committed on
different occasions were not alleged in the indictment, proven beyond a
reasonable doubt to a jury, or admitted by him.         These contentions are
foreclosed. See Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v.
Almendarez-Torres, 523 U.S. 224, 235 (1998); White, 465 F.3d at 254; United
States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005); United States v. Stone, 306
F.3d 241, 243 (5th Cir. 2002).
      Finally, Martin challenges the district court’s determination that he used
or possessed a firearm in connection with a “crime of violence,” which resulted
in his being assessed an offense level of 34 under U.S.S.G. § 4B1.4(b)(3)(A). He
argues that the Texas offense of kidnaping is not a “crime of violence” and that
there was no clear connection between the firearm allegedly used in the
kidnaping and the firearm that formed the basis for his conviction in this case.
The government correctly counters that Martin validly waived his right to
appeal his conviction and sentence, and this issue does not fall within the
waiver’s exceptions. See United States v. Bond, 414 F.3d 542, 544 & n.3 (5th Cir.
2005).
      AFFIRMED.




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