United States v. Stone

¶5BENAVIDES, Circuit Judge:

¶6Defendant Cheryl Yvonne Stone (“Stone”) was indicted by a single count superseding indictment, charging a violation of 18 U.S.C. § 922(g) [Felon in Possession of a Firearm] (“Section 922(g)”). It was further alleged that Stone qualified for a sentence enhancement pursuant to the Armed Career Criminal Act [18 U.S.C. § 924(e) ] (“Section 924(e)”).1 Stone was convicted after a jury trial and sentenced to 71 months’ imprisonment. In sentencing Stone, the district court refused to enhance Stone’s sentence pursuant to Section 924(e), and the United States appeals. Because the grounds given for the denial are unsupported by law, we vacate and remand for re-sentencing.

¶7I.

¶8Stone was arrested when a search of her home uncovered three firearms: a .22 caliber rifle; a .30-30 caliber rifle; and a 12 gauge shotgun. The Pre-Sentence Investigation Report (the “PSI”) established that Stone had two prior burglary convictions and a conviction for aggravated battery. The former convictions appear to be based on burglaries of two different buildings, occurring a month apart.

¶9As noted above, the district court declined to enhance Stone’s sentence pursuant to Section 924(e). It reasoned that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) barred the enhancement because the jury was not asked to And that Stone had committed three previous violent felonies or serious drug crimes. The district court also appeared to conclude that Stone’s criminal history consisted of only two prior violent felonies for the purposes of Section 924(e) because Stone’s two burglary convictions stemmed from a single arrest.

¶10*243II.

¶11The applicability of Apprendi to this case is a question of law that we review de novo. See, e.g., United States v. Trennell, 290 F.3d 881, 889 (7th Cir.2002). We have yet to address in a published opinion, post-Apprendi, whether the Fifth and Sixth Amendments require that a Section 924(e) enhancement be based on a jury finding. Cf. United States v. Doggett, 230 F.3d 160, 166 (5th Cir.2000) (holding that the sentencing court did not err in using prior convictions to enhance a sentence pursuant to Section 841(b)(1)(C), even though the prior convictions were not submitted to the jury). We now join every circuit addressing the issue in concluding that they do not.2

¶12In United States v. Affleck, 861 F.2d 97 (5th Cir.1988), we held that “because [Section] 924(e)(1) does not create a separate offense but is merely a sentence enhancement provision,” neither the statute nor the Constitution requires a jury finding on the existence of the three previous felony convictions required for the enhancement. Id. at 98-9. Absent a clear contrary statement from the Supreme Court or en banc reconsideration of the issue, we are bound by Affleck. Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411 n. 3 (5th Cir.1998); Valero Refining, Inc. v. M/T Lauberhorn, 813 F.2d 60, 62 (5th Cir.1987). Neither has occurred.

¶13In Apprendi the Court did hold that “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.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In so holding, however, the Court explicitly excepted enhancements like that provided by Section 924(e), which are based upon prior convictions. Id.3Accordingly, Stone’s Apprendi challenge fails.

¶14III.

¶15Whether Stone’s two prior burglary convictions should be treated as a single “violent felony” for the purposes of Section 924(e) merely because they stemmed from a single arrest is also a question of law we review de novo.4As noted above, Section 924(e) provides for a sentencing enhancement applicable to offenders who have committed three felonies “on occasions different from one another.” We recognize that the fact that multiple convictions stemmed from a single arrest could possibly be relevant to the determination whether the underlying felonies were “committed on occasions different from one another.” That fact is not, how*244ever, dispositive.5See United States v. Herbert, 860 F.2d 620, 622 (5th Cir.1988) (holding that “multiple convictions arising from multiple criminal transactions should be treated as separate convictions, regardless of the number of judicial proceedings involved in the conviction.”); United States v. Ressler, 54 F.3d 257, 259-260 (5th Cir.1995) (focusing on whether the crimes were committed simultaneously or sequentially); see also United States v. Riddle, 47 F.3d 460, 462 (1st Cir.1995) (“Congress, thinking primarily about the protection of the public, adopted a definition of armed career criminal that ignores the duration of the career or the youthfulness of the adult offender or the lack of lengthy intervals or arrests between the crimes.”); United States v. Letterlough, 63 F.3d 332, 337 (4th Cir.1995).6

¶16CONCLUSION

¶17In light of the foregoing discussion, the sentence of the district court is hereby VACATED and this matter is REMANDED for re-sentencing.