NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION File Name: 14a0241n.06
Case No. 13

- 6171
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES,
Plaintiff

- Appellee ,

v. TROY MELLOTT,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

BEFORE: COLE and SUTTON, Circuit Judges ; CLELAND, District Judge. *

SUTTON , Circuit Judge

. The federal government charged Troy Mellott with being a felon in possession of a firearm. He pled guilty to the charge. At sentencing, the district court determined that he was an armed career criminal, requiring a mandatory minimum sentence of fifteen years. On appeal, Mellott challenges his se ntence. We affirm. Under 18 U.S.C. § 92 4 (e)(1), a person who possesses a firearm and has “ three previous convictions

. . . for a violent felony ” is an armed career criminal subject to a fifteen

- year mandatory minimum

. Mellott concedes that he has three previous violent felony convictions: two for burglary in 1996 and one for breaking and entering in 2004. He argues that he

* The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting by designation.Case No. 13

- 6171 , United States v. Mellott

2

committed the two burglar ies on t he same occasion, making him a violent felon just twice over and making him subject to a ten

- year mandatory minimum. We disagree. Mellott committed the 1996 burglaries on different occasions. The arrest records show that the police arrested Mellott for burglary of a dwelling twice

— once on April 5, 1996 for a violation on an unspecified date , and once on April 6, 1996 for a violation on April 2, 1996 at 9:30 a.m . The state court indictment charged him with the burglary of a dwelling and theft of cash on April 1, 1996, and the burglary of the same dwelling and theft of electronics and oth er personal property on April 2, 1996

— four counts in all

. He p led guilty to all four counts. His two seven - year sentence s for the burglary count s and two two

- year sentences for the theft
count s ran “ concurrently for a total of seven years.” R.12

- 2 at 4. These records

— two burglary
arrest s, two burglary counts , two burglary convictions and two burglary sentences

— confirm that Mellott committed two di stinct burglaries

. “[I]t is possible to discern the point at which the first offense [was] completed” ( at l east by midnight on April 1, 1996 ) “and the subsequent point at which the second offense beg[an]” (9 :30 a.m. on April 2 , 1 996 ), establishing that Mellott committed the burglaries on different occasions. United States v. Hi ll , 440 F.3d 292, 297 (6th Cir. 2 006)

. To this way of thinking about his sentence, Mellott offers two responses. He first points to the beginning of the state court judgment, where the court summarized each charge in the indictment as occurring on “April 1 and 2, 1996.” R.12

- 2 at 3. Yet, a s the district court correctly explained, Mellott pled guilty to the indictment, which included two charges for two burglaries on two different dates resulting in the theft of two different sets of property , and his guilty plea led to two counts of conviction for burglary

. The one

- sentence summary of the charges in theCase No. 13

- 6171 , United States v. Mellott

3

judgment does not cut against the district court’s finding that Mellott committed the burglaries at
two different times

. Mellott next points to the end of the state court judgment, w here the court set his sentences to run concurrently. Yet t he consolidation of offenses “ for sentencing or for
concurrent sentences ” is “ immaterial for ACCA enhancement purposes . . . , so long as the separate offenses for which the defendant was convicte d occurred at different times and/or places.” United States v. Martin , 526 F.3d 926, 939 (6th Cir. 2008). Mellott separately questions the district court’s finding that he stole the relevant firearm.
He concedes , however, that th is finding and its effect on his guidelines range do not come into play if the mandatory minimum sentence for armed career criminals applies

. It does, making this argument irrelevant

. For these reasons, we affirm the judgment of the district court

.