FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 11, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

 IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 10-10903 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 2:07-cr-14035-DLG-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

 versus

LENWOOD DAVIES, 

a.k.a. Lenwood Davis,

 Defendant-Appellant.

________________________

 Appeal from the United States District Court

 for the Southern District of Florida

 ________________________

(August 11, 2010)

Before EDMONDSON, HULL and MARTIN, Circuit Judges.

PER CURIAM:

After pleading guilty, Lenwood Davies appeals his 180-month total
sentence for conspiracy to possess and possession with intent to distribute 50 or

more grams of crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and

possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(e). On appeal, Davies challenges the district court’s

application of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and

its corresponding guidelines enhancements pursuant to U.S.S.G. § 4B1.4. After

review, we affirm.

The ACCA imposes a mandatory minimum sentence of fifteen years if a

defendant convicted under 18 U.S.C. § 922(g) 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). A defendant who is

sentenced under the ACCA is also an “armed career criminal” under the

Sentencing Guidelines, which affects the defendant’s offense level and criminal

history category. U.S.S.G. §§ 4B1.4(a)-(c).1

An armed career criminal’s offense level is the greatest of (1) the otherwise applicable 1

offense level; (2) the offense level under U.S.S.G. § 4B1.1 (the career offender provision), if

applicable; (3) 34, if the defendant, among other things, used or possessed the firearm in

connection with a qualifying offense; or (4) otherwise, 33. U.S.S.G. § 4B1.4(b). The armed

career criminal’s criminal history category is the greatest of (1) the otherwise applicable criminal

history category or the criminal history category from § 4B1.1 (the career offender provision), if

applicable; (2) VI, if the defendant, among other things, used or possessed the firearm in

connection with a qualifying offense; or (3) IV. U.S.S.G. § 4B1.4(c). 

2
 Here, we find no reversible error in the district court’s application of the

ACCA and U.S.S.G. § 4B1.4. The Presentence Investigation Report (“PSI”)

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designated Davies an armed career criminal based on these four prior convictions:

(1) a 1988 Florida conviction for carrying a concealed firearm; (2) two separate

1994 Florida convictions for sales of cocaine; and (3) a 1997 Georgia conviction

for possession of cocaine with intent to distribute. 

In response, Davies’s sentencing memorandum admitted he qualified as an

armed career criminal. Davies acknowledged that under Eleventh Circuit

precedent at the time carrying a concealed firearm was a “violent felony” for

purposes of the ACCA, but “respectfully disagree[d]” with that precedent. Davies

also admitted that his two 1994 drug convictions were separate offenses, stating

that they were charged in different counts in the same case and involved “the sale

of $130.00 worth of cocaine on April 27, 1994” and “the sale of $125.00 worth of

cocaine on April 29, 1994.” Davies attached, inter alia, a copy of the information

charging the cocaine sales on April 27, 1994 and April 29, 1994. Davies did not

address the 1997 cocaine possession conviction also listed in the PSI as an ACCAqualifying conviction.

Davies’s plea agreement contained an appeal waiver in which Davies waived his right to 2

appeal his sentence except in certain circumstances. The government concedes Davies’s appeal

falls within one of the exceptions to the sentence-appeal waiver.

3
On appeal, Davies cites United States v. Canty, 570 F.3d 1251 (11th Cir.

2009), which concluded that a Florida conviction for carrying a concealed firearm

is not a violent felony within the meaning of the ACCA. 570 F.3d at 1255. We

agree, based on Canty, that Davies’s 1988 Florida conviction for carrying a

concealed firearm cannot be used to support his ACCA sentencing enhancements. 

This is not reversible error, however, because Davies has three other ACCAqualifying convictions, namely the two 1994 cocaine sale convictions and the

1997 cocaine possession conviction.

3

For the first time on appeal, Davies argues that his two 1994 cocaine sale

convictions were not offenses committed on different occasions. This argument is

foreclosed as invited error because at sentencing Davies affirmatively stated that

they were two separate offenses, one committed on April 27, 1994 and the other

committed on April 29, 1994. See United States v. Baker, 432 F.3d 1189, 1216

(11th Cir. 2005) (“It is a cardinal rule of appellate review that a party may not

challenge as error a ruling or other trial proceeding” if such error was invited by

We ordinarily review de novo whether a prior conviction qualifies as a violent felony or 3

a serious drug offense under the ACCA, United States v. James, 430 F.3d 1150, 1153 (11th Cir.

2005), and whether two offenses are separate for purposes of the ACCA, United States v. Sneed,

600 F.3d 1326, 1330 n.5 (11th Cir. 2010). Because Davies argued in the district court that his

1988 concealed weapon conviction was not properly considered a “violent felony” for ACCA

purposes, he preserved his Canty claim for appellate review. However, Davies’s remaining

arguments attacking his other prior convictions were not raised in the district court and, thus, are

reviewed only for plain error. See United States v. Neely, 979 F.2d 1522, 1523 (11th Cir. 1992).

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the party (alterations and quotation marks omitted)). 

In any event, the information charging Davies with cocaine sales on two

different dates supports a finding that the two offenses were temporally distinct

and thus separate for purposes of the ACCA. See United States v. Sneed, 600

F.3d 1326, 1333-32 (11th Cir. 2010) (explaining that a district court may look to

sources approved by Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254

(2005), such as a charging document, to determine whether offenses were

committed on different occasions for purposes of the ACCA). The fact that

Davies’s two offenses were consolidated for sentencing does not mean they were a

single conviction under the ACCA. See United States v. Owens, 15 F.3d 995, 998

(11th Cir. 1994) (concluding that three convictions supported ACCA enhancement

because they occurred on different dates, “although they were all resolved in one

proceeding”).

Finally, we reject Davies’s claim, also raised for the first time on appeal,

that the third ACCA-qualifying conviction—the 1997 cocaine possession

conviction—cannot be considered because it was not charged as an element in his

federal indictment. Under binding precedent, a prior conviction need not be

alleged in an indictment to support the application of a sentencing enhancement. 

Almendarez-Torres v. United States, 523 U.S. 224, 243-44, 118 S. Ct. 1219, 1230-

5
31 (1998); United States v. Greer, 440 F.3d 1267, 1273 (11th Cir. 2006)

(explaining that we are bound by Almendarez-Torres unless and until it is

overruled by the Supreme Court). By failing to object to the 1997 cocaine

possession conviction listed in the PSI, Davies is deemed to have admitted it. See

United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006) (concluding that a

district court’s findings supporting an ACCA enhancement may be based on

factual statements in the PSI not disputed by the defendant). Furthermore, Davies

does not contend that his 1997 cocaine possession conviction is not a serious drug

offense within the meaning of the ACCA. 

Given that the two 1994 cocaine sale convictions and the 1997 cocaine

possession conviction are sufficient to support application of the ACCA

sentencing enhancements in 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4, we find no

reversible error and affirm Davies’s 180-month sentence.

AFFIRMED. 

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