United States Court of Appeals

Fifth Circuit

FILED

September 19, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 05-31048

Summary Calendar

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LANE B. WHITE,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.

PER CURIAM:

Lane White challenges his sentence for being a felon in

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

argues on appeal that his criminal record did not qualify him for

a sentence enhancement under 18 U.S.C. § 924(e), and that the

district court’s application of the sentence enhancement violated

his Sixth Amendment rights. Because White’s two prior drug

offenses were not a single criminal transaction, and such a finding

was properly made by the district court without the utilization of

a jury, we AFFIRM.
2

I. Background

White pleaded guilty to the possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). In

connection with this guilty plea, White entered into a signed

factual stipulation in which he admitted that he had possessed a

.22 caliber pistol during an altercation with his wife.

The revised PSR in White’s case recommended a base

offense level of 20. Based upon an enhancement for being an “armed

career criminal” under 18 U.S.C. § 924(e), White’s offense level

was adjusted to 33. White received a three-level reduction for

acceptance of responsibility, and his criminal history was set at

Category IV. The recommended Guideline range for White’s offense

was 135-168 months imprisonment, but because White was found to be

an “armed career criminal,” the applicable Guideline range was

superseded by the statutory minimum of 180 months under 18 U.S.C.

§ 924(e)(1).

White filed written objections to the PSR, arguing that

he was not subject to the “armed career criminal” enhancement, as

his two prior drug convictions should be considered a single

offense. White also argued that the district court could not make

any findings regarding his prior convictions without violating his

Sixth Amendment rights. At White’s sentencing hearing, the

district court overruled these objections and sentenced White to
3

180 months imprisonment, plus three years of supervised release.

White then brought this timely appeal.

II. Discussion

A. Multiple Criminal Transactions

This court reviews the district court’s interpretation

and application of the Sentencing Guidelines de novo. United

States v. Montgomery, 402 F.3d 482, 485 (5th Cir. 2005).

The Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e), imposes a mandatory fifteen-year sentence on a felon who

has been convicted of the unlawful possession of a firearm, and who

has three previous convictions for a “violent felony” or a “serious

drug offense.” In the instant case, White’s sentence was enhanced

due to three prior convictions: a 1988 conviction for aggravated

battery, and two 1989 convictions for distribution of marijuana and

distribution of cocaine. White does not suggest that his crimes

were not “violent felonies” or “serious drug offenses” for the

purposes of § 924(e). Instead, he argues that his two prior drug

convictions should be treated as a single “serious drug offense”

for the purposes of § 924(e).
1 As the Government correctly notes, White offered no evidence

indicating that his drug offenses were conducted in the manner he describes,

infra. Rather, in a sentencing memorandum and during White’s sentencing hearing,

his counsel asserted the underlying “facts” of White’s drug convictions. Such

assertions by counsel are not evidence; White did not present evidence to rebut

the PSR, which established two separate criminal transactions. See United States

v. Quertermous, 946 F.2d 375, 378 (5th Cir. 1991). Even assuming arguendo that

White’s version of events is accurate, however, the district court did not err

in holding that his drug crimes constituted separate “serious drug offenses” for

the purposes of § 924(e).

4

Relying on the assertions of counsel,1 White claims that

on March 12, 1988, a confidential informant approached him and

requested to purchase cocaine and marijuana. White immediately

supplied the informant with marijuana, but did not have cocaine on

his person at time. Thus, he arranged to sell cocaine to the

informant five days later, and he returned on March 17 to complete

the cocaine transaction. White’s two offenses were charged

separately, but tried together.

It is well established in this circuit that “[m]ultiple

convictions arising from the same judicial proceeding but separate

criminal transactions constitute multiple convictions for purposes

of § 924(e).” United States v. Ressler, 54 F.3d 257, 259 (5th Cir.

1995). Thus, the fact that White’s drug charges were tried

together is irrelevant to the determination of whether his actions

constituted two criminal transactions. Ultimately, “[t]he critical

inquiry when deciding whether separate offenses occurred on

‘occasions different from one another’ for purposes of ACCA is

whether the offenses occurred sequentially.” United States v.

Fuller, 453 F.3d 274, 278 (5th Cir. 2006)(citing Ressler, 54 F.3d
5

at 260). This court has long held that crimes that are “distinct

in time” are properly treated as separate criminal transactions for

the purposes of § 924(e). See, e.g., United States v. Barr, 130

F.3d 711, 712 (5th Cir. 1997)(two drug sales to same buyer

separated by a day counted as two criminal transactions); Ressler,

54 F.3d at 260 (burglary and later stabbing of pursuer

approximately ten minutes later were two criminal transactions);

United States v. Washington, 898 F.2d 439, 442 (5th Cir. 1990)(two

robberies committed against same victim hours apart were two

criminal transactions).

White acknowledges this precedent, but he urges the

distinction that he allegedly agreed to sell cocaine to an

informant at the same time he in fact sold marijuana. He thus

argues that his subsequent delivery of cocaine was part of a single

transaction. This argument must be rejected; Ressler and United

States v. Cardenas, 217 F.3d 491 (7th Cir. 2000), a Seventh Circuit

case whose facts are nearly identical to this case, are

instructive. In Ressler, the defendant argued that because he

stabbed his victim in the course of fleeing the scene of his

earlier crime, his two crimes were part of the same transaction.

However, the court noted that Ressler was “free to cease and desist

from further criminal activity” after fleeing the scene of his

crime, yet he made the independent decision to attack a good

Samaritan who attempted to detain him. Ressler, 54 F.3d at 260.

Similarly, in Cardenas, the defendant sold crack cocaine to
6

informants, agreed to sell more if the buyers were satisfied with

their first purchase, and returned forty-five minutes later to

complete a second sale; because the first sale was not contingent

upon the second, and the defendant “had plenty of time to change

his mind, to cease and desist, and to refuse to sell to the

informants,” the court determined that Cardenas had partaken in two

criminal transactions. Cardenas, 217 F.3d at 492. In the instant

case, long after he completed his sale of marijuana, White

committed the new offense of selling cocaine. White had five days

to decide against selling cocaine, but he elected to commit an

additional crime. As White’s conviction for the sale of cocaine

was distinct in time from his conviction for the sale of marijuana,

the district court did not err in holding that White had committed

two “serious drug offenses” for the purposes of § 924(e).

B. Sixth Amendment Claims

White also argues, based upon Shepard v. United States,

544 U.S. 13, 125 S. Ct. 1254 (2005), and its antecedents, that his

Sixth Amendment rights were violated when the district court

enhanced his sentence based upon facts neither admitted by him nor

submitted to a jury. The application of the Sixth Amendment to

§ 924(e) is a question of law that we review de novo. United

States v. Stone, 306 F.3d 241, 243 (5th Cir. 2002).

As this court held in Stone, “‘because [Section]

924(e)(1) does not create a separate offense but is merely a
7

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

243 (quoting and reaffirming United States v. Affleck, 861 F.2d 97,

98-99 (5th Cir. 1988) in light of Apprendi v. New Jersey, 530 U.S.

466, 120 S. Ct. 2348 (2000)). Stone remains good law, and Shepard

is not to the contrary. As the Fourth Circuit held in United

States v. Thompson, 421 F.3d 278 (4th Cir. 2005), “[t]he data

necessary to determine the ‘separateness’ of [a defendant’s crimes]

is [sic] inherent in the fact of prior convictions,” and do not

have to be put before a jury. Id. at 285.

White did not object to the accuracy of the facts in the

PSR; in fact, through his counsel at his sentencing hearing, he

admitted that he had sold drugs on March 12 and March 17, 1988, as

part of his argument that he only committed a single “serious drug

offense,” supra. This court has recently held that “the district

court can use all facts admitted by the defendant” in ascertaining

the basis of a prior conviction for enhancement purposes. United

States v. Mendoza-Sanchez, 456 F.3d 479, 483 (5th Cir. 2006).

Moreover, in addition to the PSR and White’s admissions, the

Government also provided the court with Shepard-approved court

documents, including the charging instruments used against White.

White did not object to them. Thus, the court had ample bases to

determine that White’s drug offenses were separate; it did not run
8

afoul of Shepard in finding that White qualified for a sentence

enhancement.

III. Conclusion

For the foregoing reasons, White’s sentence is AFFIRMED.