[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-12335

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

RICKY DOUGLAS HAYNES, JR., 

 Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket Nos. 6:07-cr-00054-JA-GJK-1,

6:07-cr-00073-JA-KRS-1

____________________

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2 Opinion of the Court 19-12335

Before WILLIAM PRYOR, Chief Judge, WILSON and 

ANDERSON, Circuit Judges.

PER CURIAM:

Ricky Douglas Haynes, Jr. appeals his sentence of 240 

months of imprisonment imposed when he was resentenced a second time for three counts of possessing cocaine base with intent to 

distribute, 21 U.S.C. § 841(a)(l), one count of using and carrying a 

firearm during a drug-trafficking crime, 18 U.S.C. § 924(c)(l)(A),

and one count of possessing a firearm and ammunition as a felon, 

id. § 922(g)(l). See 28 U.S.C. § 2255. We granted Haynes a certificate 

of appealability to address whether he was entitled to relief under 

the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, 

but Haynes has abandoned that issue as “resolved” by the district 

court granting him relief under the First Step Act of 2018, Pub. L. 

No. 115-391, 132 Stat. 5194. See Sapuppo v. Allstate Floridian Ins. 

Co., 739 F.3d 678, 681 (11th Cir. 2014). Haynes argues that the district court erred by resentencing him pursuant to the Armed Career Criminal Act and that the Act is unconstitutional. See 18 U.S.C. 

§ 924(e). Haynes also argues that the district court erred by counting as a predicate offense his prior conviction in Florida for resisting 

an officer with violence, see id. § 924(e)(2)(B), and by treating as 

temporally distinct his convictions in 2001 for federal drug crimes

that were charged in a single indictment. We affirm.

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19-12335 Opinion of the Court 3

I. BACKGROUND

In 2007, Haynes pleaded guilty simultaneously to two indictments that collectively charged him with five crimes. He admitted, 

in case 07-54, to committing two firearm offenses, 18 U.S.C.

§§ 922(g)(1), 924(c)(l)(A), and one drug offense, 21 U.S.C. 

§ 841(a)(l), and in case 07-73, he admitted to committing two similar drug offenses, 21 U.S.C. § 841(a)(1). Haynes’s indictment in case 

07-54 alleged that he had prior convictions in a Florida court in 1996 

for resisting arrest with violence and for possession of cocaine, in 

1998 for possession of cocaine, and in 2002 for possessing a firearm 

as a felon and for carrying a concealed firearm, and in the district 

court in 2001 for possessing cocaine base with intent to distribute. 

The United States notified Haynes that he faced enhancement of

his sentence, and records attached to the notice evidenced that he

had been convicted in 2001 of possessing cocaine base with intent 

to distribute on February 24, 2000, and on March 9, 2000.

Haynes’s presentence investigation report classified him as 

an armed career criminal and a career offender. The presentence 

report identified as predicate offenses Haynes’s prior convictions in 

1996 for resisting arrest with violence, in 2002 for carrying a concealed firearm, and in 2001 for possessing cocaine base with intent 

to distribute. The criminal history section of Haynes’s report described his numerous prior convictions, including those in 1994 for 

resisting arrest with violence, in 1995 for possession of cocaine, in 

1997 for possession of cocaine, in 1999 for possession of a firearm 

by a felon and for possession of cocaine with intent to distribute, 

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4 Opinion of the Court 19-12335

and in 2000 for three counts of possessing cocaine base with intent 

to distribute. Those prior convictions produced 12 criminal history 

points, and with two points added because Haynes committed his 

instant offenses less than two years after his release from custody, 

U.S.S.G. § 4A1.1(e), he received a criminal history category of VI. 

Haynes objected, unsuccessfully, to his classification as an 

armed career criminal on the ground that his prior convictions for 

resisting arrest and carrying a concealed firearm did not qualify as 

violent felonies. But Haynes did not object to the existence of the 

prior convictions listed in the report or to his classification as a career offender. Haynes “ask[ed] for a much lower sentence than 

what the guideline . . . recommend[ed] in [his] case,” but the prosecutor “ask[ed] the [district] court to certainly sentence following 

the guidelines.” The prosecutor stressed that “[n]ot only is Mr. 

Haynes an armed career criminal, he’s a career offender as well, the 

very example of what these categorizations and enhancements 

were designed for.” And the prosecutor reminded the district court 

that it was “well aware [of] and . . . familiar with Mr. Haynes” because his “last case . . . was in front of Your Honor” and that 

Haynes’s “criminal history” was “riddled with [prior convictions, 

including] resisting arrest with violence, possession of cocaine, possession with intent, . . . [and] possession of firearm by a convicted 

felon already in 1999.”

The district court sentenced Haynes using the higher penalty that the Sentencing Guidelines yielded. See id. § 4B1.1. The 

district court sentenced Haynes in case 07-54 to three concurrent 

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19-12335 Opinion of the Court 5

terms of 322 months of imprisonment, and in case 07-73, to two 

terms of 322 months of imprisonment to run concurrently with 

each other and with the sentence in case 07-54. We affirmed his 

convictions and sentences after an independent review of the record revealed no issues of merit, see Anders v. California, 386 U.S. 

738 (1967). United States v. Haynes, 297 F. App’x 856 (11th Cir. 

2008).

In 2012, Haynes moved successfully to vacate his sentence

in case 07-54 for being a felon in possession of a firearm. See 28 

U.S.C. § 2254. Haynes argued, and the United States agreed, that

his sentence of 322 months for being a felon in possession exceeded

his maximum statutory penalty of 120 months. See 18 U.S.C. 

§ 924(c)(1)(A)(i). Haynes also argued that, because his prior conviction for carrying a concealed firearm no longer qualified as a violent felony, see United States v. Archer, 531 F.3d 1347 (11th Cir. 

2008), he was not an armed career criminal. But the United States 

responded that, although carrying a concealed firearm was no 

longer a predicate offense, Haynes was not entitled to relief on that 

basis because he had been sentenced, and still qualified, as a career 

offender. The district court ruled that Haynes had not been sentenced as an armed career criminal and that he was entitled to have 

his sentence for being a felon in possession vacated on the ground 

his sentence exceeded the statutory maximum. 

At resentencing, the district court acquiesced to defense 

counsel’s request to “restructure” Haynes’s sentence in case 07-54.

During the hearing, the district court, probation officer, and 

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6 Opinion of the Court 19-12335

prosecutor discussed the appropriate sentence for Haynes, as a career offender, for possessing a firearm as a felon:

PROBATION OFFICER: If [Haynes] is not an armed career 

criminal, then we agree that the maximum is 120 months. I 

was under the impression that he was an armed career criminal, so that’s why the maximum was 15 to life.

So as long as the Court is under the understanding 

that he’s not, then the 120 is correct.

THE COURT: Right.

PROBATION OFFICER: Okay.

THE COURT: Because the qualifying offense, I think, was 

carrying a concealed—was it carrying a concealed firearm, 

or was it—

PROBATION OFFICER: Carrying a concealed weapon.

THE COURT: And I think that that is not a qualifying offense.

PROBATION OFFICER: Okay.

THE COURT: Do you agree, Miss Wilson?

MS. WILSON: Yes.

The district court sentenced Haynes to 262 months for possessing 

cocaine base with intent to distribute, 21 U.S.C. § 841(a)(l), and a 

concurrent term of 120 months for possessing a firearm as a felon, 

18 U.S.C. § 922(g)(1), with a consecutive term of 60 months for 

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19-12335 Opinion of the Court 7

using and carrying a firearm during his drug trafficking, id.

§ 924(c)(l)(A).

In 2015, Haynes filed the motion to vacate that is the subject 

of this appeal. See 28 U.S.C. § 2255. Haynes argued to vacate his 

sentences in cases 07-54 and 07-73 because his counsel at resentencing in 2012 should have prevented two errors. Haynes argued that 

he had been misclassified as a career offender because his conviction in 1996 for resisting arrest was too old to count as a predicate 

offense and that his criminal history category had been miscalculated because his conviction for resisting arrest and his conviction 

in 1995 for possessing cocaine were too old to include in his criminal history score. The United States argued that Haynes had procedurally defaulted his challenges to his sentence by failing to raise 

them at trial, on appeal, or in his first motion to vacate. The United 

States also argued that counsel had not been ineffective at resentencing because he had been appointed for the limited purpose of 

contesting Haynes’s sentence in 07-54 and because any objection 

to the career offender enhancement would have been untimely and 

procedurally barred. 

The district court held a hearing on Haynes’s motion. The 

district court acknowledged “the importance of finality,” but it was 

troubled that “mistakes ha[d] been made” and proposed “just resentencing from scratch.” The United States asserted that it had 

“made a mistake” by agreeing that Haynes was not an armed career 

criminal because he had been convicted in 2001 of “two separate 

incidents” of possessing cocaine base with intent to distribute, 

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8 Opinion of the Court 19-12335

which with his conviction for “resisting [arrest] with violence, 

would make him an armed career criminal.”

The district court granted Haynes’s motion to vacate. 28 

U.S.C. § 2255. The district court ruled that counsel at resentencing 

had performed deficiently for not opposing Haynes’s classification 

as a career offender and not opposing the use of two stale convictions that resulted in him having 14 instead of 9 criminal history 

points and a criminal history score of VI instead of IV. The district 

court stated that, “under the sentencing package doctrine, [it] 

had—or upon proper motion could have had—jurisdiction to resentence Mr. Haynes” in both cases. After explaining that it “would 

not have resentenced Mr. Haynes to 322 months in prison absent

the career offender enhancement,” the district court vacated 

Haynes’s sentences in cases 07-54 and 07-73 to resentence him 

“with the benefit of correctly calculated guidelines.” The district 

court ordered the probation office to prepare a new presentence 

investigation report. 

The new presentence report classified Haynes as an armed 

career criminal, and he objected. See 18 U.S.C. § 924(e). The report 

listed as predicate offenses Haynes’s convictions in 1996 for resisting arrest with violence and in 2001 for two counts of possessing 

cocaine base with intent to distribute. Haynes argued that he was 

not an armed career criminal for four reasons: the United States 

had waived application of the Armed Career Criminal Act; his prior 

conviction for resisting arrest with violence did not qualify as a violent felony; the United States could not prove his two drug crimes 

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19-12335 Opinion of the Court 9

were temporally distinct; and enhancing his sentence based on 

prior convictions not charged in his indictment or proved to a jury

would violate his rights under the Fifth and Sixth Amendments to 

the Constitution.

The United States argued that the Armed Career Criminal 

Act was mandatory and that precedent did not bar resentencing 

with “a clean slate, an opportunity to correct errors that have been 

made in this case,” and “an opportunity . . . and . . . obligation to 

get it right.” The United States also asserted that Haynes’s indictment and plea agreement evidenced that there were “two controlled purchases of crack cocaine that happened at two different 

locations on those two different dates: February 24, 2000, and 

March 9, 2000.”

The district court overruled Haynes’s objections. The district court ruled that the United States had proved that Haynes’s 

two prior drug convictions were temporally distinct using valid 

Shepard documents, see Shepard v. United States, 544 U.S. 13, 16 

(2005), and that controlling precedent made clear that resisting arrest with violence was categorically a violent felony, United States 

v. Hill, 799 F.3d 1318, 1322 (11th Cir. 2015); United States v. Romo–

Villalobos, 674 F.3d 1246, 1251 (11th Cir. 2012). The district court 

also ruled that “the plain language in the [Armed Career Criminal 

Act] . . . ma[de] it clear that imposition of [an] enhanced sentence

is required, . . . regardless of whether the Government seeks enhancement . . . .” And the district court rejected Haynes’s arguments that it could not make findings regarding the nature of his 

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prior convictions and that “the different occasions provision is void 

for vagueness.”

The district court adopted, with no objection from Haynes, 

the factual statements and calculations in the presentence report. 

After considering the statutory sentencing factors, 18 U.S.C. § 3553, 

the district court sentenced Haynes to 240 months of imprisonment. In case 07-54, the district court imposed concurrent sentences of 180 months of imprisonment for possessing cocaine base 

with intent to distribute, 21 U.S.C. § 841(a)(l), and for being a felon 

in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1), 

and a consecutive term of 60 months of imprisonment for carrying 

a firearm during his drug-trafficking crime, id. § 924(c)(l)(A). In case 

07-73, the district court imposed sentences of 120 months of imprisonment for Haynes’s two drug crimes and ordered that those sentences run concurrent with each other and with his 180-month sentences in case 07-54.

II. STANDARD OF REVIEW

We review de novo the classification of a defendant as an 

armed career criminal and the validity of the Armed Career Criminal Act. United States v. Deshazior, 882 F.3d 1352, 1354 (11th Cir. 

2018).

III. DISCUSSION

Haynes maintains that he was erroneously sentenced as an 

armed career criminal. He argues that the United States waived application of the Armed Career Criminal Act and that the Act is 

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invalid. Hayes also argues that the prior convictions used to enhance his sentence did not qualify as predicate offenses.

The United States did not waive application of the Act to 

Haynes. “[A] waiver is the intentional relinquishment of a known 

right . . . .” United States v. Lewis, 492 F.3d 1219, 1222 (11th Cir. 

2007) (en banc) (citing United States v. Olano, 507 U.S. 725, 733

(1993)). Nothing the United States said during Haynes’s sentencing 

proceedings could be construed as intentionally relinquishing the 

right to sentence him as an armed career criminal. At sentencing, 

the United States highlighted that Haynes, as stated in his presentence investigation report, was “an armed career criminal . . . [and] 

a career offender” based on his numerous prior convictions that

qualified as predicate offenses to enhance Haynes’s sentence under 

the Act and the Sentencing Guidelines. As we have explained, 

“there is no requirement that the government prospectively address . . . each and every . . . [aspect] of a PSI . . . in order to guard 

against potential future changes in the law and [to] avoid later 

claims . . . [of] waive[r] . . . .” See Tribue v. United States, 929 F.3d 

at 1326, 1332 (11th Cir. 2019) (holding that the government did not 

waive reliance on convictions listed in the presentence investigation report that were not identified as predicate offenses). The prosecutor also did not waive application of the Act by agreeing in 

Haynes’s first 2255 proceeding that his prior conviction for carrying 

a concealed weapon no longer qualified as a crime of violence and 

that, as a career offender, he had a statutory maximum penalty of 

10 years of imprisonment for possessing a firearm as a felon.

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12 Opinion of the Court 19-12335

The district court did not err by applying the Act to Haynes. 

The district court, at Haynes’s request and to remedy earlier sentencing errors, vacated his sentences in both cases. That “general 

vacatur of [Haynes’s] sentence[s] by default allow[ed] for resentencing de novo.” United States v. Martinez, 606 F.3d 1303, 1304 

(11th Cir. 2010). At that de novo resentencing, so long as Haynes 

had three or more prior convictions for “a violent felony or a serious drug offense, or both,” 18 U.S.C. § 924(e)(1), the “sentence enhancement pursuant to § 924(e) . . . [had to] automatically be applied by the [district] court[],”United States v. Cobia, 41 F.3d 1473, 

1475 (11th Cir 1995). See United States v. Sharp, 21 F.4th 1282, 1285 

(11th Cir. 2021); United States v. Symington, 781 F.3d 1308, 1313 

(11th Cir. 2015) (“hold[ing] that the district court did not err in sentencing Symington in accordance with the ACCA because the 

ACCA is mandatory”).

Haynes’s two constitutional challenges to the Act fail. 

Haynes argues that the “different occasions” provision is void for 

vagueness. But “a penal statute . . . satisf[ies] due process . . . [if it] 

define[s] the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in 

a manner that does not encourage arbitrary and discriminatory enforcement.” Skilling v. United States, 561 U.S. 358, 402–03 (2010). 

A defendant can readily “identify an ‘occasion’ . . . [g]iven that the 

term in ACCA has just its ordinary meaning,” Wooden v. United 

States, 142 S. Ct. 1063, 1071 (2022), that offenses occur at different 

times and involve “separate and distinct criminal episodes,” United 

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19-12335 Opinion of the Court 13

States v. Dudley, 5 F.4th 1249, 1259 (11th Cir. 2021), cert. denied, 

142 S. Ct. 1376 (2022) (quoting United States v. Sneed, 600 F.3d 

1326, 1329 (11th Cir. 2010)) (alteration adopted). So, a defendant 

using “a single factor—especially of time or place—can decisively 

differentiate occasions.” Wooden, 142 S. Ct. at 1071. And Haynes’s 

“argument that judicially determining whether prior convictions 

were committed on different occasions from one another for purposes of the ACCA violates a defendant’s Fifth and Sixth Amendment rights” is foreclosed by our precedents. Dudley, 5 F.4th at 

1260 (citing United States v. Longoria, 874 F.3d 1278 (11th Cir. 

2017), United States v. Weeks, 711 F.3d 1255 (11th Cir. 2013), and 

United States v. Overstreet, 713 F.3d 627 (11th Cir. 2013)).

Haynes’s argument that his prior conviction for resisting arrest is not a violent felony is foreclosed by precedent too. We recently reaffirmed in Deshazior, 882 F.3d at 1355, that a conviction 

in Florida for resisting arrest with violence, Fla. Stat. § 843.01, is 

categorically a violent felony under the elements clause of the Act.

See United States v. Hill, 799 F.3d 1318, 1322–23 (11th Cir. 2015); 

United States v. Romo–Villalobos, 674 F.3d 1246, 1251 (11th Cir. 

2012). That precedent is “binding in this circuit unless and until it 

is overruled or undermined to the point of abrogation by the Supreme Court or by this Court sitting en banc.” Deshazior, 882 F.3d 

at 1355.

The district court also did not err in determining that 

Haynes’s two convictions in 2001 for possessing cocaine base with 

intent to distribute, 21 U.S.C. § 841(b)(1)(C), were temporally 

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distinct. To determine whether Haynes’s “prior convictions were 

committed on different occasions from one another, [the] district 

court [could] rely on ‘non-elemental facts’ contained in . . . Shepard-approved sources.” Dudley, 5 F.4th at 1260. “Shepard documents may include the charging document, any plea agreement 

submitted to the court, the transcript of the plea colloquy, or any 

‘record of comparable findings of fact adopted by the defendant 

upon entering the plea.’” United States v. Gandy, 917 F.3d 1333, 

1339 (11th Cir. 2019) (quoting Shepard, 544 U.S. at 20–21, 26). 

Haynes’s indictment and the written judgment stated that he committed the drug offenses “on or about February 24, 2000,” and “on 

or about March 9, 2000.” Those records proved that Haynes’s two 

drug offenses were “committed on occasions different from one 

another.” 18 U.S.C. § 924(e)(1).

IV. CONCLUSION

We AFFIRM Haynes’s sentence.

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