The opinion
NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0387n.06
No. 18-5929
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Jul 30, 2019
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE WESTERN
MARVIN LEON HAYES, )
DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
)
BEFORE: COLE, Chief Judge; GRIFFIN and BUSH, Circuit Judges.
GRIFFIN, Circuit Judge.
The district court imposed a fifteen-year mandatory minimum sentence under the Armed
Career Criminal Act (ACCA) after finding defendant Marvin Leon Hayes had three previous
serious-drug-offense convictions that he committed on different occasions. Because it did not err
in doing so, we affirm.
I.
Hayes pleaded guilty to unlawfully possessing a firearm as a felon. The ACCA mandates
a fifteen-year minimum sentence for anyone convicted of being a felon in possession of a firearm
who has “three previous convictions by any court . . . for . . . a serious drug offense . . . committed
on occasions different from one another.” 18 U.S.C. § 924(e)(1). The presentence report identified
three § 924(e)-qualifying felony-drug convictions: a Kentucky conviction for trafficking cocaine,
and two federal convictions for possessing crack cocaine with the intent to distribute. The district
No. 18-5929, United States v. Hayes
court—over defendant’s objection that the federal felonies were not committed on different
occasions—agreed with the presentence report and sentenced defendant to the fifteen-year
statutory minimum sentence. Hayes appeals.
II.
The government must establish by a preponderance of the evidence that a defendant
committed § 924(e)-qualifying convictions “on occasions different from one another.” United
States v. Pham, 872 F.3d 799, 801 (6th Cir. 2017). Only Shepard-approved documents may be
used to make this showing, see United States v. King, 853 F.3d 267, 275 (6th Cir. 2017), which
include “the charging document,” the “plea agreement,” and the “transcript of colloquy between
judge and defendant in which the factual basis for the plea was confirmed by the defendant.”
Shepard v. United States, 544 U.S. 13, 26 (2005). Hayes contends the district court erred in finding
his federal convictions were committed on different occasions. Our review is de novo. United
States v. Jenkins, 770 F.3d 507, 509 (6th Cir. 2014).
“In this circuit, two offenses were committed on different occasions under the ACCA if 1)
it is possible to discern when the first offense ended and the subsequent point at which the second
offense began; 2) the offender could have withdrawn from crime after the first offense ended and
not committed the second offense; or 3) the offenses were committed at different residences or
business locations.” Pham, 872 F.3d at 802. When a defendant commits multiple drug offenses
on different days, the offenses “do not constitute a single criminal episode” and thus separately
qualify for § 924(e)’s enhancement. United States v. Roach, 958 F.2d 679, 684 (6th Cir. 1992).
Indeed, two “occasions” may even occur on the same day. See, e.g., United States v. Brady, 988
F.2d 664, 669 (6th Cir. 1993) (en banc).
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No. 18-5929, United States v. Hayes
The contested federal convictions stem from a three-count indictment: (1) conspiracy to
possess crack cocaine with the intent to distribute; (2) possessing crack cocaine with the intent to
distribute “[o]n or about October 12, 1999”; and (3) possessing crack cocaine with the intent to
distribute “[o]n or about October 21, 1999.” Hayes pleaded guilty to all three counts. His plea
agreement set out the pertinent factual basis for the convictions at issue here: “On or about October
12, 1999, [he] possessed 16.36 grams of cocaine base with intent to distribute” (count 2) and “[o]n
or about October 21, 1999, [he] possessed 21.63 grams of cocaine base with intent to distribute”
(count 3). And the transcript of the plea colloquy reflects that Hayes confirmed for the district
court that he entered into an agreement with a co-conspirator to distribute crack cocaine, and that
he distributed crack cocaine “on two occasions . . . [a]s charged in the indictment.” We therefore
agree with the district court that these Shepard-approved documents easily establish by a
preponderance of the evidence that defendant’s federal convictions are serious drug offenses that
were “committed on occasions different from one another.”
Defendant’s arguments on appeal are without merit. We see no ambiguity in the
indictment’s (and plea agreement’s) use of the phrase “on or about.” Although no exact date is set
forth, it is “clearly possible to discern when [the first] offense ended and the subsequent point at
which the next offense began, just as it is clearly possible that [Hayes] could have withdrawn from
crime after [the first] offense ended and not committed the next offense.” United States v. Farrad,
895 F.3d 859, 887 (6th Cir. 2018) (alterations, citations and internal quotation marks omitted).
That a jury convicted the defendant in Farrad, whereas Hayes pleaded guilty here, matters not for
purposes of ACCA eligibility. See Shepard, 544 U.S. at 19. And even if there was ambiguity,
Hayes “necessarily admitted,” see id. at 24, during the plea colloquy that the conduct charged in
counts two and three of the indictment—two sales of crack cocaine, each sale of a different
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No. 18-5929, United States v. Hayes
quantity and each required to support a separate felony charge—occurred “on two occasions . . .
[a]s charged in the indictment.”
III.
For these reasons, we affirm the district court’s judgment.
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