United States v. Conrad Blair

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-4427

_____________

UNITED STATES OF AMERICA

v.

CONRAD CLINTON BLAIR,

Appellant

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-11-cr-00108-001)

District Judge: Honorable David S. Cercone

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Argued September 11, 2013

Before: RENDELL, JORDAN and GREENAWAY, JR.,

Circuit Judges.

(Filed: November 4, 2013)

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Akin Adepoju, Esq.

Renee Pietropaolo, Esq. [ARGUED]

Office of the Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant

Rebecca R. Haywood, Esq.

Laura S. Irwin, Esq. [ARGUED]

Office of United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Conrad Clinton Blair appeals a sentence imposed by

the United States District Court for the Western District of

Pennsylvania. His appeal implicates a sentencing

enhancement under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), and, in particular, presents

the question of what are prior convictions for “violent

felon[ies] … committed on occasions different from one

another… .” Because we conclude that Blair has at least

three prior convictions for felonies committed on separate

occasions, we will affirm.

2

I. Background

In 2011, Blair participated in the sale of guns, even

though his criminal past rendered him a person prohibited by

federal law from possessing a firearm. After his arrest, he

pled guilty to two counts of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1) (making it

“unlawful for any person … who has been convicted in any

court of[] a crime punishable by imprisonment for a term

exceeding one year … to … possess … any firearm”).

A presentence investigation report (“PSR”)

recommended that Blair be sentenced under ACCA, which

mandates a minimum 15-year prison sentence for anyone

possessing a firearm after “three previous convictions … for a

… violent felony … committed on occasions different from

one another.” 18 U.S.C. § 924(e). Blair had pled guilty in

Pennsylvania state court on September 14, 1987, to one count

of third-degree robbery in the form of “physically tak[ing] or

remov[ing] property from the person of another by force

however slight,” in violation of 18 Pa. Cons. Stat. Ann.

§ 3701(a)(1)(v), and to one count of armed burglary, in

violation of 18 Pa. Cons. Stat. Ann. § 3502. On May 6, 1991,

he had again pled guilty,1 this time to four counts of first-

degree robbery in violation of 18 Pa. Cons. Stat. Ann. § 3701.

The charging documents accompanying the 1991 robbery

convictions list the counts charged and, for each count, state

that the “[f]elony committed or threatened” was “[a]ggravated

1

The District Court mistakenly indicated that the

convictions were entered on May 6, 1990, instead of May 6,

1991.

3

[a]ssault.” (App. at 137, 154, 171, 192.) The PSR

recommended that each of the 1991 robbery counts be treated

as a separate criminal episode committed on a separate

occasion. The PSR thus calculated that, for purposes of

ACCA, Blair had six prior convictions, which made him

subject to the mandatory minimum sentence provided in that

statute. Because the advisory Guidelines range fell below the

mandatory minimum, that minimum of 15 years (180 months)

became the recommended sentence.

Blair contested the applicability of ACCA, specifically

arguing as to his 1987 convictions that the burglary

conviction was not for the generic offense of burglary

required under ACCA and that robbery by force however

slight is not a violent felony under ACCA.2 Of most

pertinence for this appeal, he also argued that his 1991

robbery convictions qualified as, at most, one violent felony

under ACCA, because they were entered on the same day and

the charging documents did not conclusively establish that the

2

Blair argues that his 1987 burglary indictment

charged only burglary generally, which under the

Pennsylvania statute could include entry into a vehicle or

yard, and therefore, “the conviction did not necessarily rest on

all elements of generic burglary” and so is not an ACCA

predicate. (Appellant’s Opening Br. at 28.) As to the 1987

robbery conviction, he says that robbery by force however

slight, 18 Pa. Cons. Stat. Ann. § 3701(a)(1)(v), does not

qualify as a “violent felony” under ACCA because it “does

not have force … as an element, [and it] does not otherwise

involve conduct that presents a serious potential risk of

physical injury to another.” (Appellant’s Opening Br. at 29.)

We make no comment on either of those arguments.

4

crimes were “committed on occasions different from one

another.” The District Court reviewed Blair’s prior

convictions and his objections and determined that his 1987

robbery and burglary convictions were for violent felonies.

The Court also held that Blair’s four 1991 robbery

convictions “at a minimum” established three separate violent

felonies under ACCA. (App. at 18.) “Giving [Blair] the

benefit of the doubt,” the District Court did not count two of

the convictions separately because those two robberies were

committed on the same day. (Id.) It thus held that Blair had

“no fewer” than five predicate violent felonies under ACCA,

i.e., two 1987 convictions and three 1991 convictions, and so

applied the ACCA mandatory minimum. (App. at 18-19.)

After the District Court sentenced Blair to 180 months in

prison and three years of supervised release, this timely

appeal followed.

II. Discussion3

Blair continues to maintain that his 1987 Pennsylvania

convictions for burglary and robbery do not qualify as ACCA

predicates because they are not categorically violent felonies.

He also again argues that his 1991 robbery convictions cannot

be considered to have been “committed on occasions different

from one another,” 18 U.S.C. § 924(e)(1), because he pled

3

The District Court had subject matter jurisdiction

over this case pursuant to 18 U.S.C. § 3231. We exercise

jurisdiction under 28 U.S.C. § 1291 and, to the extent Blair

says his sentence was imposed in violation of law, under 18

U.S.C. § 3742. “This appeal presents purely legal questions,

over which we exercise plenary review.” United States v.

Jones, 332 F.3d 688, 690 (3d Cir. 2003).

5

guilty to those charges on the same day. He has, in addition,

advanced a new argument based on the Supreme Court’s

recent holding in Descamps v. United States, 133 S. Ct. 2276

(2013), a case which clarifies the analytical approach that

sentencing courts must use to determine if a prior conviction

is a predicate offense under ACCA. Blair now contends that

his 1991 robbery convictions are not categorically violent

felonies under ACCA. Moreover, he says that the Supreme

Court’s recent decision in Alleyne v. United States, 133 S. Ct.

2151 (2013), holding that facts that increase a mandatory

minimum sentence must be submitted to a jury, bears on our

analysis. While he does not expressly argue that he was

entitled to a jury determination under Alleyne with respect to

the predicate offenses for his mandatory minimum sentence,

he does imply that Alleyne should guide our decision.

We conclude that at least three of Blair’s 1991 robbery

convictions qualify under ACCA as violent felonies

committed on separate occasions. As a result, his 1991

robbery convictions alone qualify him for the ACCA

enhancement, and we will affirm the District Court’s

application of that enhancement without considering Blair’s

1987 robbery or burglary convictions. See United States v.

Berrios, 676 F.3d 118, 129 (3d Cir. 2012) (“We may affirm

the District Court on any ground supported by the record.”).

A. “Violent Felony”

On May 6, 1991, Blair pled guilty to committing first-

degree felony robbery in violation of Pennsylvania law.

(App. at 137-38, 154-55, 171-72, 192-93.) The statute in

question provides in relevant part:

6

(1) A person is guilty of robbery if, in the

course of committing a theft, he:

(i) inflicts serious bodily injury upon

another;

(ii) threatens another with or

intentionally puts him in fear of

immediate serious bodily injury;

(iii) commits or threatens immediately to

commit any felony of the first or second

degree … .

18 Pa. Cons. Stat. Ann. § 3701(a)(1)(i)-(iii).

Robberies under subsections (i), (ii), and (iii) of

§ 3701(a)(1) are defined as felonies in the first-degree. Id. at

§ 3701(b). Blair pled to four charges of first-degree felony

robbery in four separate plea agreements. Each of Blair’s

signed guilty pleas includes the notation “F1” (indicating

first-degree) “Robbery.” (See, e.g., App. at 138.) For each

guilty plea, there is a corresponding charging document.

Each charging document includes counts that are framed in

the same language as the subsections of § 3701(a)(1). At the

bottom of each charging document, there is a line to indicate

the “[f]elony committed or threatened,” and “[a]ggravated

[a]ssault” is noted on that line. 4 (App. at 137, 154, 171, 192.)

The “felony committed or threatened” language is specifically

akin to the language of § 3701(a)(1)(iii), which, again, makes

it a first-degree felony to commit a robbery during the course

4

In addition, at the bottom of each charging document

the name of the victim, the type of property taken, and the

value of the property taken are described.

7

of which one “commits or threatens immediately to commit

any felony of the first or second degree … .” 18 Pa. Cons.

Stat. Ann. § 3701(a)(1)(iii). Aggravated assault is classified

as a felony in the first or second degree, id. § 2702(b), and

clearly involves violence. Therefore, Blair was charged with

and pled guilty to four violent first-degree felony robberies.

In his opening and reply briefs, Blair essentially

conceded that his May 6, 1991, convictions satisfy the

“violent felony” condition of ACCA. (Cf. Appellant’s

Opening Br. at 45 (“The … robberies are not violent felonies

‘committed on occasions different from one another’ but at

most count as one violent felony predicate.”); Appellant’s

Reply Br. at 18 (“For the foregoing reasons and those

articulated in the opening brief, the 1991 robbery convictions

count at most as one violent felony … .”).) But, in a

supplemental brief addressing the Supreme Court’s decision

in Descamps, and again at oral argument, he has insisted that

the robbery convictions are not categorically violent felonies.5

A prior conviction qualifies as a “violent felony” under

ACCA if the conviction is for “any crime punishable by

imprisonment for a term exceeding one year … that”: (i) “has

5

Blair also argues that the residual clause of ACCA,

§ 924(e)(2)(B)(ii), is unconstitutionally vague and that his

sentence should accordingly be reversed. But both the

Supreme Court and our Court have rejected that argument.

See Sykes v. United States, 131 S. Ct. 2267, 2277 (2011)

(upholding residual clause against vagueness challenge);

United States v. Gibbs, 656 F.3d 180, 188-89 (3d Cir. 2011)

(rejecting “fair notice” argument and holding that the residual

clause is not unconstitutionally vague).

8

as an element the use, attempted use, or threatened use of

physical force against the person of another;” or (ii) “is

burglary, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential

risk of physical injury to another… .” 18 U.S.C.

§§ 924(e)(2)(B)(i) & (ii).

In determining whether a defendant’s prior conviction

serves as an ACCA predicate, we begin our analysis with

what is called the “categorical approach,” first adopted in

Taylor v. United States, 495 U.S. 575 (1990), under which a

sentencing court compares “the elements of the statute

forming the basis of the defendant’s conviction with the

elements of the ‘generic’ crime – i.e., the offense as

commonly understood.” Descamps, 133 S. Ct. at 2281; see

also James v. United States, 550 U.S. 192, 202 (2007) (“[W]e

consider whether the elements of the offense are of the type

that would justify its inclusion within the residual provision

[of ACCA], without inquiring into the specific conduct of this

particular offender.”). When the statute’s elements are “the

same as, or narrower than” the generic offense, the prior

conviction qualifies as an ACCA predicate. Descamps, 133

S. Ct. at 2281. But if a statute “comprises multiple,

alternative versions of the crime[,]” id. at 2284, then a court

may apply the “modified categorical approach” to determine

which alternative – one that meets the generic offense

definition or one that does not – formed the basis for the

conviction. Id. at 2281. A statute that includes alternative

elements is said to be “divisible,” id. at 2283, while one that

does not is “indivisible.” Id. at 2281.

The modified categorical approach allows the

sentencing court to “consult a limited class of documents,

9

such as indictments and jury instructions,” to determine

which alternative in a divisible statute was the basis for a

conviction, and to compare that conviction to the generic

offense under ACCA. Id.; see Taylor, 495 U.S. at 602.

Under the modified categorical approach, a court is therefore

permitted to “go beyond the mere fact of conviction[,]”

Taylor, 495 U.S. at 602, to determine the elements of the

crime of conviction. Id.; Shepard v. United States, 544 U.S.

13, 20-21 (2005) (holding that, to interpret a conviction

pursuant to a plea agreement, a sentencing court may look to

the agreement and plea colloquy in applying the modified

categorical approach). The decision in Descamps makes it

clear that if the relevant statute is indivisible (that is, it does

not have alternative elements), and if it is overbroad (that is, it

criminalizes a broader range of conduct than the generic

offense), then the sentencing court cannot apply the modified

categorical approach.6 133 S. Ct. at 2281.

In Descamps, the Supreme Court rejected the Ninth

Circuit’s application of the modified categorical approach to a

California burglary statute. That statute provides that a

“person who enters” property “with intent to commit grand or

petit larceny or any felony is guilty of burglary.” Cal. Penal

Code § 459 (quoted in Descamps, 133 S. Ct. at 2282).

Significantly, it “does not require the entry to have been

unlawful in the way most burglary laws do.” Descamps, 133

S. Ct. at 2282. So, for example, a shoplifter who walks into a

6

In this context, the term “overbroad” has nothing to

do with the constitutional concept of “overbreadth.” Rather,

it is the term the Supreme Court used to describe the scope of

a criminal statute in comparison to the generic version of an

offense.

10

store like any other business invitee comes within the

statutory definition of burglary. Id. “In sweeping so widely,

the state law goes beyond the normal, ‘generic’ definition of

burglary[,]” id., and is therefore overbroad. The statute is

also indivisible, because it does not provide any alternative

definitions of burglary. Nevertheless, the Ninth Circuit,

relying on its own precedent, see United States v. Aguila-

Montes de Oca, 655 F.3d 915, 940 (9th Cir. 2011) (en banc)

(per curiam) (where a statute is “categorically broader than

the generic offense,” the sentencing court may look at certain

documents), had ruled that it could apply the modified

categorical approach. It looked at the plea colloquy and

decided that the plea “rested on facts that satisfy the elements

of generic burglary.” Descamps, 133 S. Ct. at 2282-83

(quoting United States v. Descamps, 466 F. App’x 563, 565

(9th Cir. 2012)). The Supreme Court reversed and clarified

that “sentencing courts may not apply the modified

categorical approach when the crime of which the defendant

was convicted has a single, indivisible set of elements.” Id. at

2282. The Court stated that the purpose of the modified

categorical approach is “to identify, from among several

alternatives, the crime of conviction so that the court can

compare it to the generic offense.” Id. at 2285. If a statute is

indivisible, it presents no alternatives and the inquiry ends.

There is simply no reason to turn to the modified categorical

approach. Id

Blair tries to make of Descamps something it is not.

He notes that, although the Pennsylvania robbery statute as a

whole is divisible, some of its subsections can be viewed as

indivisible and overbroad. He then argues that, because the

charging documents and plea agreement in his case do not say

which subsection of the robbery statute he was convicted

11

under in 1991, a sentencing court could properly apply the

modified categorical approach only to determine which

statutory subsection criminalized the least culpable behavior

of which he could have been convicted. (Appellant’s

Supplemental Br. at 4 (quoting United States v. Tucker, 703

F.3d 205, 214 (3d Cir. 2012)).) Since the “least culpable”

subsection is § 3701(a)(1)(iii), which is overbroad and

indivisible, he says the court could go no further. Thus, he

says, it was error under Descamps for the District Court to

use the modified categorical approach and review the

charging documents to determine that the elements of his

conviction satisfy ACCA.

Given the clearly laid out alternative elements of the

Pennsylvania robbery statute, it is obviously divisible and,

therefore, a sentencing court can properly look to the kinds of

documents listed by the Supreme Court in Taylor and

Shepard to determine which subsection was the basis of

Blair’s prior convictions. Blair acknowledges as much.

(Appellant’s Supplemental Br. at 3 (citing to the

Commonwealth’s charging documents and Blair’s guilty

pleas).) He could not do otherwise, as logic dictates that a

court endeavoring to conclude which subsection he pled

guilty to violating would have to look “to the terms of the

charging document, the terms of a plea agreement or

transcript of colloquy between judge and defendant in which

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

or to some comparable judicial record of this information.” 7

7

As we discuss more fully herein, because “prior

convictions that increase the statutory maximum for an

offense are not elements of the offense,” they “may be

determined by the District Court by a preponderance of the

12

Shepard, 544 U.S. at 26. Each of the charging documents for

the 1991 convictions indicates that Blair pled guilty to first-

degree robbery.

Blair believes a new analysis begins at that point.

Because the first-degree felony portion of Pennsylvania’s

divisible robbery statute is itself divisible into subsections (i),

(ii), and (iii), he says that a sentencing court must “apply the

modified categorical approach in order to determine the least

culpable conduct sufficient for a conviction.” (Appellant’s

Supplemental Br. at 4 (quoting Tucker, 703 F.3d at 214).)

True enough, that further analytical step is necessary when

documents a sentencing court has already reviewed do not

definitively point out which of the statutory subsections was

violated. Here they do not, and Blair thinks that that makes

the documents irrelevant. He contends that the sentencing

court may use the first-degree indication in the guilty plea

only to get as far as identifying the three first-degree robbery

subsections, and then it must choose the least culpable one

with no more reference to the charging documents or guilty

pleas. Because the least culpable subsection is subsection

(iii), which criminalizes robbery wherein the perpetrator

“commits or threatens immediately to commit any felony of

the first or second degree,” 18 Pa. Cons. Stat. Ann.

§ 3701(a)(1)(iii), and because some felonies of the first and

second degree involve no violence, Blair believes he is home

free. He is mistaken.

evidence.” United States v. Coleman, 451 F.3d 154, 159 (3d

Cir. 2006) (citing Almendarez-Torres v. United States, 523

U.S. 224, 243 (1998)).

13

There is no precedent for the argument that a

sentencing court, having launched on the modified categorical

approach, should stop when it gets to a statutory subsection

and determine again whether to proceed with that approach

and whether it can consider documents it has already

reviewed. The problem is a practical one. Even if it is true

that subsection (iii) of § 3701(a)(1) is indivisible and

categorically overbroad, as Blair says is the case, the

documents that the District Court had reviewed as part of the

modified categorical analysis plainly state that the felonies

associated with his 1991 robbery convictions were

“aggravated assault.” (App. at 137, 154, 171, 192.) The

search for the applicable subsection in the relevant statute

does not send the sentencing judge into a state of amnesia.

To shift the metaphor, the blinders are already off, and there

is no requirement to pretend otherwise.

Though Blair wishes it were otherwise, Descamps did

not upend the Supreme Court’s ACCA jurisprudence. It is a

straightforward clarification of the uses to which the

categorical approach and modified categorical approach can

be put in determining whether a prior conviction qualifies as a

“violent felony” under ACCA. See Descamps, 133 S. Ct. at

2287. Despite Blair’s arguments, Descamps does not demand

a recursive process wherein a district court that has already

pursued the modified categorical approach in addressing a

divisible statute is required to ignore the charging documents

and guilty pleas it has just reviewed. Again, the several

charging documents associated with the 1991 convictions

expressly state that the “felony committed or threatened” by

Blair in each instance was “aggravated assault.” (App. at

137, 154, 171, 192.) Reading each charging document and

guilty plea as a whole, as the District Court did, it is clear that

14

Blair “pled guilty to [each such] robbery charge on May 6,

1991, as a felony of the first degree, thereby admitting that he

used force causing serious bodily injury or threatened to do so

and/or threatened to commit aggravated assault in the process

of committing the robbery.” (App. at 16-17.) That is the

sensible conclusion of the analysis long permitted by the

modified categorical approach, and Descamps does nothing to

change it.

In sum, Pennsylvania’s robbery statute is divisible and

the District Court correctly looked to the charging documents

to determine that Blair was convicted of a violent felony

under ACCA.

B. “Committed on Occasions Different from One

Another”

Blair next contends that the District Court incorrectly

applied ACCA because there was insufficient proof that the

1991 convictions were for offenses committed on different

occasions, and therefore they at most amount to one predicate

offense. As already noted, ACCA’s mandatory minimum

sentence of 15 years becomes applicable when the defendant

“has three previous convictions … for a violent felony or a

serious drug offense, or both, committed on occasions

different from one another… .” 18 U.S.C. § 924(e)(1)

(emphasis added). Blair argues that, because he did not admit

that the robberies occurred on different occasions when he

pled guilty to the charges, the enhanced sentence was

improper under Supreme Court case law and the Fifth and

Sixth Amendments of the United States Constitution.

15

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the

Supreme Court held that, under the Due Process Clause of the

Fifth Amendment and the notice and jury trial guarantees of

the Sixth Amendment, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.” Id. at 490.

Nevertheless, as is evident from the language of that holding,

Apprendi did not change the pre-existing rule from

Almendarez-Torres v. United States, 523 U.S. 224 (1998),

that a judge, rather than a jury, may determine “the fact of a

prior conviction.” Apprendi, 530 U.S. at 490. Recently, in

Alleyne v. United States, the Supreme Court extended

Apprendi and held that any facts that increase a mandatory

minimum sentence must be submitted to a jury and proved

beyond a reasonable doubt. 133 S. Ct. 2151, 2158 (2013)

(overruling Harris v. United States, 536 U.S. 545 (2002),

which held that Apprendi did not apply to facts that increase a

mandatory minimum sentence). But the Court expressly

declined to alter the Almendarez-Torres rule. Id. at 2160 n.1.

It observed that, “[b]ecause the parties do not contest that

decision’s vitality, we do not revisit it for purposes of our

decision today.” Id. Almendarez-Torres therefore remains “a

narrow exception to [Apprendi’s] general rule for the fact of a

prior conviction.” Id.

Blair tries to distance himself from the continuing

control of Almendarez-Torres, but he cannot. Although he

does not contend that Alleyne or Descamps overrules the

Almendarez-Torres exception to Apprendi, he urges an

impermissibly narrow construction of the exception. Blair

asserts that it is possible he may have committed some of his

robberies on the same occasion, “during a single criminal

16

episode or a continuous course of conduct or simultaneously

through accomplices.” (Appellant’s Opening Br. at 51.)

Determining whether his 1991 convictions were the product

of a single event or a series of episodes, he says, could only

have been accomplished by the District Court impermissibly

looking at “non-elemental” facts associated with the

convictions. (Appellant’s Supplemental Br. at 6.) By “non-

elemental,” he means “amplifying but legally extraneous

circumstances[,]” as distinct from elements of the offense, the

elements being the only facts the sentencing court can be sure

were found by a jury. Descamps, 133 S. Ct. at 2288.

Because Descamps condemns any reliance on non-elemental

facts, even in the application of the modified categorical

approach, Blair contends that the District Court erred when it

concluded that the robberies were committed on “occasions

different from one another” and increased his sentence.

(Appellant’s Supplemental Br. at 6-7.)

Blair essentially tries to merge Alleyne’s extension of

Apprendi (covering mandatory minimums) and the holding of

Descamps (limiting the application of the modified

categorical approach) to narrow Almendarez-Torres so that a

court considering an ACCA sentencing enhancement cannot

take note of information pertaining to a prior conviction, such

as the date or location of the crimes charged. He argues that

Descamps and Alleyne “teach that strict adherence to the

categorical approach and a narrow reading of the limited

Almendarez-Torres exception to the rule of Apprendi is

necessary to avoid Sixth Amendment concerns, and thus

support … that the sentencing court erred [in this case].”

(Appellant’s Supplemental Br. at 6-7.) By his lights, the

sentencing court “did what Descamps forbids” and looked at

the non-elemental facts of date, location, and victim to

17

determine that the felonies were committed on different

occasions. (Id. at 8.)

Blair’s arguments fail, however, because Almendarez-

Torres has not been narrowed and remains the law. Alleyne,

133 S. Ct. at 2160 n.1. Descamps and Alleyne do nothing to

restrict the established exception under Almendarez-Torres

that allows judges to consider prior convictions. When the

pertinent documents show, as they do in this case, that the

prior convictions are for separate crimes against separate

victims at separate times, Alleyne does not somehow muddy

the record and convert the separateness issue into a jury

question. Alleyne was written against the backdrop of

Almendarez-Torres and existing ACCA jurisprudence. Had

the Supreme Court meant to say that all details related to prior

convictions are beyond judicial notice, it would have said so

plainly, as that would have been a marked departure from

existing law.

Arguments like Blair’s have been rejected by

numerous courts. See, e.g., United States v. Weeks, 711 F.3d

1255, 1259 (11th Cir. 2013) (“[F]or ACCA purposes, district

courts may determine both the existence of prior convictions

and the factual nature of those convictions, including whether

they were committed on different occasions … .”); United

States v. Elliott, 703 F.3d 378, 382 (7th Cir. 2012) (“[A]

district court [may] make a finding for purposes of the ACCA

as to whether a defendant committed three or more violent

felonies or serious drug offenses on occasions different from

one another.”); United States v. Thomas, 572 F.3d 945, 952

n.4 (D.C. Cir. 2009) (citing cases); United States v. Hendrix,

509 F.3d 362, 376 (7th Cir. 2007) (“[T]he district court’s

determination from the PSR that [the defendant] had three

18

previous convictions to satisfy the Armed Career Criminal

Act is not impermissible factfinding, and [the defendant’s]

sentence does not violate the Sixth Amendment.”); United

States v. Michel, 446 F.3d 1122, 1133 (10th Cir. 2006)

(“[W]hether prior convictions happened on different

occasions from one another is not a fact required to be

determined by a jury but is instead a matter for the sentencing

court.”); United States v. Thompson, 421 F.3d 278, 285 (4th

Cir. 2005) (“The data necessary to determine the

‘separateness’ of the occasions is inherent in the fact of the

prior convictions.”); United States v. Burgin, 388 F.3d 177,

186 (6th Cir. 2004) (“[T]he determinations by a district court

that prior felony convictions exist and were committed on

different occasions, are so intimately related that the

‘different occasions’ requirement of § 924(e) sufficiently

comes within the exception in Apprendi for a prior

conviction. Thus, … this issue need not be pled in an

indictment, submitted to a jury, and proved beyond a

reasonable doubt.”); United States v. Santiago, 268 F.3d 151,

157 (2d Cir. 2001) (“[Section] 924(e)’s ‘different occasions’

requirement falls safely within the range of facts traditionally

found by judges at sentencing and is sufficiently interwoven

with the facts of the prior crimes that Apprendi does not

require different fact-finders and different burdens of proof

for Section 924(e)’s various requirements.”). We agree with

that wide consensus and conclude that neither Descamps nor

Alleyne undermines the District Court’s “fact of a prior

conviction” analysis.

The 1991 convictions cover four robberies committed

in October of 1990. According to the charging documents,

one robbery occurred “on or about” October 20, a second

robbery occurred “on or about” October 22, and two

19

robberies occurred “on or about” October 23. Although the

dates charged were not elements of the offenses, the charging

documents nonetheless contained factual matter that was

sufficient for the District Court to conclude that Blair’s 1991

convictions were for at least three robberies that occurred on

separate occasions.8 Indeed, the date of an offense is integral

to the fact of a prior conviction, and is customarily reflected

in the kinds of documents that courts may, under Shepard and

Taylor, use to determine whether a prior conviction exists.

The offenses at issue here occurred on separate

occasions because “the criminal episodes [were] distinct in

time[,]” United States v. Schoolcraft, 879 F.2d 64, 73 (3d Cir.

1989) (citations omitted)(internal quotation marks omitted),

and targeted “different geographic locations and victims,”

Thompson, 421 F.3d at 285. See also United States v. Pope,

132 F.3d 684, 692 (11th Cir. 1998) (holding that a

defendant’s convictions for burgling two different doctor’s

offices located 200 yards apart constitute two crimes, even

though the two burglaries were separated by only moments);

United States v. Brady, 988 F.2d 664, 668-70 (6th Cir. 1993)

(en banc) (holding that two armed robberies, separated in

time by less than an hour, are two convictions).9

8

There is a good argument to be made that all four of

the 1991 convictions took place on separate occasions,

because even the robberies that occurred on the same day

were committed at locations roughly two miles from each

other, and each involved a separate victim. But we need not

reach that conclusion here, as we may affirm the District

Court based on three prior convictions.

9

For those reasons, Blair’s invocation of United States

v. Fuller, 453 F.3d 274 (5th Cir. 2006), does not help his

20

Accordingly, the District Court’s conclusion that Blair’s 1991

convictions qualify as at least three predicate offenses under

ACCA was correct, as was the imposition of the mandatory

minimum sentence required by ACCA.10

cause. The Fuller court held that multiple burglary

convictions were not necessarily for crimes committed on

separate occasions when the indictment did not indicate

whether the defendant had pled guilty to entering separate

apartment units in the same complex, or simply to standing as

a lookout as his accomplice entered the apartments. Id. at

279-80. The court recognized, however, that the case

“turn[ed] on whether [the burglaries] occurred sequentially,

as the district court held that they did, or simultaneously,”

because “[t]he critical inquiry when deciding whether

separate offenses occurred on ‘occasions different from one

another’ for purposes of the ACCA is whether the offenses

occurred sequentially.” Id. If they were sequential, meaning

that one crime came to an end before the next commenced,

they occurred on separate occasions. Id. Here, the charging

documents clearly indicated that, at least as to the robberies

occurring on different days, each of Blair’s robberies had

been completed before the next commenced. They were

separated in both time and distance and therefore could not be

said to be a continuation of one crime.

10

Because we do not see any ambiguity as to whether

ACCA applies here, we also reject Blair’s argument that the

rule of lenity should apply. “The rule of lenity requires

ambiguous criminal laws to be interpreted in favor of the

defendants subjected to them.” United States v. Santos, 553

U.S. 507, 514 (2008).

21

III. Conclusion

For the foregoing reasons, we will affirm Blair’s

sentence.

22