2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-4-2013

USA v. Conrad Blair

Precedential or Non-Precedential: Precedential

Docket No. 12-4427

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-4427

_____________

UNITED STATES OF AMERICA

v.

CONRAD CLINTON BLAIR,

 Appellant 

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-11-cr-00108-001)

District Judge: Honorable David S. Cercone

_______________

Argued September 11, 2013

Before: RENDELL, JORDAN and GREENAWAY, JR., 

Circuit Judges.

(Filed: November 4, 2013)

_______________
2

Akin Adepoju, Esq.

Renee Pietropaolo, Esq. [ARGUED]

Office of the Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

 Counsel for Appellant

Rebecca R. Haywood, Esq.

Laura S. Irwin, Esq. [ARGUED]

Office of United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

 Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Conrad Clinton Blair appeals a sentence imposed by 

the United States District Court for the Western District of 

Pennsylvania. His appeal implicates a sentencing 

enhancement under the Armed Career Criminal Act 

(“ACCA”), 18 U.S.C. § 924(e), and, in particular, presents 

the question of what are prior convictions for “violent 

felon[ies] ... committed on occasions different from one 

another... .” Because we conclude that Blair has at least 

three prior convictions for felonies committed on separate 

occasions, we will affirm.
3

I. Background

In 2011, Blair participated in the sale of guns, even 

though his criminal past rendered him a person prohibited by 

federal law from possessing a firearm. After his arrest, he

pled guilty to two counts of being a felon in possession of a 

firearm, in violation of 18 U.S.C. § 922(g)(1) (making it 

“unlawful for any person ... who has been convicted in any 

court of[] a crime punishable by imprisonment for a term 

exceeding one year ... to ... possess ... any firearm”). 

A presentence investigation report (“PSR”) 

recommended that Blair be sentenced under ACCA, which 

mandates a minimum 15-year prison sentence for anyone 

possessing a firearm after “three previous convictions ... for a 

... violent felony ... committed on occasions different from 

one another.” 18 U.S.C. § 924(e). Blair had pled guilty in

Pennsylvania state court on September 14, 1987, to one count 

of third-degree robbery in the form of “physically tak[ing] or 

remov[ing] property from the person of another by force 

however slight,” in violation of 18 Pa. Cons. Stat. Ann. 

§ 3701(a)(1)(v), and to one count of armed burglary, in 

violation of 18 Pa. Cons. Stat. Ann. § 3502. On May 6, 1991, 

he had again pled guilty,1this time to four counts of firstdegree robbery in violation of 18 Pa. Cons. Stat. Ann. § 3701. 

The charging documents accompanying the 1991 robbery 

convictions list the counts charged and, for each count, state

that the “[f]elony committed or threatened” was “[a]ggravated 

 

1

The District Court mistakenly indicated that the 

convictions were entered on May 6, 1990, instead of May 6, 

1991. 
4

[a]ssault.” (App. at 137, 154, 171, 192.) The PSR 

recommended that each of the 1991 robbery counts be treated 

as a separate criminal episode committed on a separate 

occasion. The PSR thus calculated that, for purposes of 

ACCA, Blair had six prior convictions, which made him 

subject to the mandatory minimum sentence provided in that 

statute. Because the advisory Guidelines range fell below the 

mandatory minimum, that minimum of 15 years (180 months)

became the recommended sentence. 

Blair contested the applicability of ACCA, specifically 

arguing as to his 1987 convictions that the burglary

conviction was not for the generic offense of burglary 

required under ACCA and that robbery by force however 

slight is not a violent felony under ACCA.2 Of most 

pertinence for this appeal, he also argued that his 1991 

robbery convictions qualified as, at most, one violent felony 

under ACCA, because they were entered on the same day and 

the charging documents did not conclusively establish that the 

 

2 Blair argues that his 1987 burglary indictment 

charged only burglary generally, which under the 

Pennsylvania statute could include entry into a vehicle or 

yard, and therefore, “the conviction did not necessarily rest on 

all elements of generic burglary” and so is not an ACCA 

predicate. (Appellant’s Opening Br. at 28.) As to the 1987 

robbery conviction, he says that robbery by force however 

slight, 18 Pa. Cons. Stat. Ann. § 3701(a)(1)(v), does not 

qualify as a “violent felony” under ACCA because it “does 

not have force ... as an element, [and it] does not otherwise 

involve conduct that presents a serious potential risk of 

physical injury to another.” (Appellant’s Opening Br. at 29.) 

We make no comment on either of those arguments.
5

crimes were “committed on occasions different from one 

another.” The District Court reviewed Blair’s prior 

convictions and his objections and determined that his 1987 

robbery and burglary convictions were for violent felonies. 

The Court also held that Blair’s four 1991 robbery 

convictions “at a minimum” established three separate violent 

felonies under ACCA. (App. at 18.) “Giving [Blair] the 

benefit of the doubt,” the District Court did not count two of 

the convictions separately because those two robberies were 

committed on the same day. (Id.) It thus held that Blair had 

“no fewer” than five predicate violent felonies under ACCA,

i.e., two 1987 convictions and three 1991 convictions, and so

applied the ACCA mandatory minimum. (App. at 18-19.) 

After the District Court sentenced Blair to 180 months in 

prison and three years of supervised release, this timely 

appeal followed. 

II. Discussion3

Blair continues to maintain that his 1987 Pennsylvania 

convictions for burglary and robbery do not qualify as ACCA

predicates because they are not categorically violent felonies. 

He also again argues that his 1991 robbery convictions cannot 

be considered to have been “committed on occasions different 

from one another,” 18 U.S.C. § 924(e)(1), because he pled

 

3

The District Court had subject matter jurisdiction 

over this case pursuant to 18 U.S.C. § 3231. We exercise 

jurisdiction under 28 U.S.C. § 1291 and, to the extent Blair 

says his sentence was imposed in violation of law, under 18 

U.S.C. § 3742. “This appeal presents purely legal questions, 

over which we exercise plenary review.” United States v. 

Jones, 332 F.3d 688, 690 (3d Cir. 2003).
6

guilty to those charges on the same day. He has, in addition, 

advanced a new argument based on the Supreme Court’s 

recent holding in Descamps v. United States, 133 S. Ct. 2276 

(2013), a case which clarifies the analytical approach that

sentencing courts must use to determine if a prior conviction

is a predicate offense under ACCA. Blair now contends that 

his 1991 robbery convictions are not categorically violent 

felonies under ACCA. Moreover, he says that the Supreme 

Court’s recent decision in Alleyne v. United States, 133 S. Ct. 

2151 (2013), holding that facts that increase a mandatory 

minimum sentence must be submitted to a jury, bears on our

analysis. While he does not expressly argue that he was 

entitled to a jury determination under Alleyne with respect to 

the predicate offenses for his mandatory minimum sentence, 

he does imply that Alleyne should guide our decision. 

We conclude that at least three of Blair’s 1991 robbery 

convictions qualify under ACCA as violent felonies 

committed on separate occasions. As a result, his 1991 

robbery convictions alone qualify him for the ACCA 

enhancement, and we will affirm the District Court’s 

application of that enhancement without considering Blair’s

1987 robbery or burglary convictions. See United States v. 

Berrios, 676 F.3d 118, 129 (3d Cir. 2012) (“We may affirm 

the District Court on any ground supported by the record.”).

A. “Violent Felony”

On May 6, 1991, Blair pled guilty to committing firstdegree felony robbery in violation of Pennsylvania law. 

(App. at 137-38, 154-55, 171-72, 192-93.) The statute in 

question provides in relevant part:
7

(1) A person is guilty of robbery if, in the 

course of committing a theft, he:

(i) inflicts serious bodily injury upon 

another;

(ii) threatens another with or 

intentionally puts him in fear of 

immediate serious bodily injury;

(iii) commits or threatens immediately to 

commit any felony of the first or second 

degree ... .

18 Pa. Cons. Stat. Ann. § 3701(a)(1)(i)-(iii).

Robberies under subsections (i), (ii), and (iii) of 

§ 3701(a)(1) are defined as felonies in the first-degree. Id. at

§ 3701(b). Blair pled to four charges of first-degree felony 

robbery in four separate plea agreements. Each of Blair’s 

signed guilty pleas includes the notation “F1” (indicating 

first-degree) “Robbery.” (See, e.g., App. at 138.) For each 

guilty plea, there is a corresponding charging document. 

Each charging document includes counts that are framed in 

the same language as the subsections of § 3701(a)(1). At the 

bottom of each charging document, there is a line to indicate 

the “[f]elony committed or threatened,” and “[a]ggravated 

[a]ssault” is noted on that line. 4 (App. at 137, 154, 171, 192.) 

The “felony committed or threatened” language is specifically 

akin to the language of § 3701(a)(1)(iii), which, again, makes 

it a first-degree felony to commit a robbery during the course 

 

4

In addition, at the bottom of each charging document 

the name of the victim, the type of property taken, and the 

value of the property taken are described.
8

of which one “commits or threatens immediately to commit 

any felony of the first or second degree ... .” 18 Pa. Cons. 

Stat. Ann. § 3701(a)(1)(iii). Aggravated assault is classified 

as a felony in the first or second degree, id. § 2702(b), and 

clearly involves violence. Therefore, Blair was charged with 

and pled guilty to four violent first-degree felony robberies.

In his opening and reply briefs, Blair essentially 

conceded that his May 6, 1991, convictions satisfy the 

“violent felony” condition of ACCA. (Cf. Appellant’s 

Opening Br. at 45 (“The ... robberies are not violent felonies 

‘committed on occasions different from one another’ but at 

most count as one violent felony predicate.”); Appellant’s 

Reply Br. at 18 (“For the foregoing reasons and those 

articulated in the opening brief, the 1991 robbery convictions 

count at most as one violent felony ... .”).) But, in a 

supplemental brief addressing the Supreme Court’s decision

in Descamps, and again at oral argument, he has insisted that 

the robbery convictions are not categorically violent felonies.5

 

A prior conviction qualifies as a “violent felony” under 

ACCA if the conviction is for “any crime punishable by 

imprisonment for a term exceeding one year ... that”: (i) “has 

 

5 Blair also argues that the residual clause of ACCA,

§ 924(e)(2)(B)(ii), is unconstitutionally vague and that his 

sentence should accordingly be reversed. But both the 

Supreme Court and our Court have rejected that argument. 

See Sykes v. United States, 131 S. Ct. 2267, 2277 (2011) 

(upholding residual clause against vagueness challenge);

United States v. Gibbs, 656 F.3d 180, 188-89 (3d Cir. 2011) 

(rejecting “fair notice” argument and holding that the residual 

clause is not unconstitutionally vague).
9

as an element the use, attempted use, or threatened use of 

physical force against the person of another;” or (ii) “is 

burglary, arson, or extortion, involves use of explosives, or 

otherwise involves conduct that presents a serious potential 

risk of physical injury to another... .” 18 U.S.C. 

§§ 924(e)(2)(B)(i) & (ii). 

In determining whether a defendant’s prior conviction 

serves as an ACCA predicate, we begin our analysis with 

what is called the “categorical approach,” first adopted in 

Taylor v. United States, 495 U.S. 575 (1990), under which a 

sentencing court compares “the elements of the statute 

forming the basis of the defendant’s conviction with the 

elements of the ‘generic’ crime – i.e., the offense as 

commonly understood.” Descamps, 133 S. Ct. at 2281; see 

also James v. United States, 550 U.S. 192, 202 (2007) (“[W]e 

consider whether the elements of the offense are of the type 

that would justify its inclusion within the residual provision 

[of ACCA], without inquiring into the specific conduct of this 

particular offender.”). When the statute’s elements are “the 

same as, or narrower than” the generic offense, the prior 

conviction qualifies as an ACCA predicate. Descamps, 133 

S. Ct. at 2281. But if a statute “comprises multiple, 

alternative versions of the crime[,]” id. at 2284, then a court 

may apply the “modified categorical approach” to determine 

which alternative – one that meets the generic offense 

definition or one that does not – formed the basis for the 

conviction. Id. at 2281. A statute that includes alternative 

elements is said to be “divisible,” id. at 2283, while one that 

does not is “indivisible.” Id. at 2281. 

The modified categorical approach allows the 

sentencing court to “consult a limited class of documents, 
10

such as indictments and jury instructions,” to determine 

which alternative in a divisible statute was the basis for a

conviction, and to compare that conviction to the generic 

offense under ACCA. Id.; see Taylor, 495 U.S. at 602. 

Under the modified categorical approach, a court is therefore 

permitted to “go beyond the mere fact of conviction[,]” 

Taylor, 495 U.S. at 602, to determine the elements of the 

crime of conviction. Id.; Shepard v. United States, 544 U.S. 

13, 20-21 (2005) (holding that, to interpret a conviction 

pursuant to a plea agreement, a sentencing court may look to 

the agreement and plea colloquy in applying the modified 

categorical approach). The decision in Descamps makes it 

clear that if the relevant statute is indivisible (that is, it does

not have alternative elements), and if it is overbroad (that is, it

criminalizes a broader range of conduct than the generic 

offense), then the sentencing court cannot apply the modified 

categorical approach.6 133 S. Ct. at 2281.

In Descamps, the Supreme Court rejected the Ninth 

Circuit’s application of the modified categorical approach to a 

California burglary statute. That statute provides that a 

“person who enters” property “with intent to commit grand or 

petit larceny or any felony is guilty of burglary.” Cal. Penal 

Code § 459 (quoted in Descamps, 133 S. Ct. at 2282). 

Significantly, it “does not require the entry to have been 

unlawful in the way most burglary laws do.” Descamps, 133 

S. Ct. at 2282. So, for example, a shoplifter who walks into a 

 

6

In this context, the term “overbroad” has nothing to 

do with the constitutional concept of “overbreadth.” Rather, 

it is the term the Supreme Court used to describe the scope of 

a criminal statute in comparison to the generic version of an 

offense. 
11

store like any other business invitee comes within the 

statutory definition of burglary. Id. “In sweeping so widely, 

the state law goes beyond the normal, ‘generic’ definition of 

burglary[,]” id., and is therefore overbroad. The statute is 

also indivisible, because it does not provide any alternative 

definitions of burglary. Nevertheless, the Ninth Circuit, 

relying on its own precedent, see United States v. AguilaMontes de Oca, 655 F.3d 915, 940 (9th Cir. 2011) (en banc)

(per curiam) (where a statute is “categorically broader than 

the generic offense,” the sentencing court may look at certain 

documents), had ruled that it could apply the modified 

categorical approach. It looked at the plea colloquy and 

decided that the plea “rested on facts that satisfy the elements 

of generic burglary.” Descamps, 133 S. Ct. at 2282-83 

(quoting United States v. Descamps, 466 F. App’x 563, 565 

(9th Cir. 2012)). The Supreme Court reversed and clarified 

that “sentencing courts may not apply the modified 

categorical approach when the crime of which the defendant 

was convicted has a single, indivisible set of elements.” Id. at 

2282. The Court stated that the purpose of the modified 

categorical approach is “to identify, from among several 

alternatives, the crime of conviction so that the court can 

compare it to the generic offense.” Id. at 2285. If a statute is 

indivisible, it presents no alternatives and the inquiry ends. 

There is simply no reason to turn to the modified categorical 

approach. Id

Blair tries to make of Descamps something it is not. 

He notes that, although the Pennsylvania robbery statute as a 

whole is divisible, some of its subsections can be viewed as 

indivisible and overbroad. He then argues that, because the 

charging documents and plea agreement in his case do not say 

which subsection of the robbery statute he was convicted 
12

under in 1991, a sentencing court could properly apply the 

modified categorical approach only to determine which 

statutory subsection criminalized the least culpable behavior 

of which he could have been convicted. (Appellant’s 

Supplemental Br. at 4 (quoting United States v. Tucker, 703 

F.3d 205, 214 (3d Cir. 2012)).) Since the “least culpable” 

subsection is § 3701(a)(1)(iii), which is overbroad and 

indivisible, he says the court could go no further. Thus, he 

says, it was error under Descamps for the District Court to

use the modified categorical approach and review the 

charging documents to determine that the elements of his 

conviction satisfy ACCA. 

Given the clearly laid out alternative elements of the 

Pennsylvania robbery statute, it is obviously divisible and, 

therefore, a sentencing court can properly look to the kinds of 

documents listed by the Supreme Court in Taylor and

Shepard to determine which subsection was the basis of 

Blair’s prior convictions. Blair acknowledges as much. 

(Appellant’s Supplemental Br. at 3 (citing to the 

Commonwealth’s charging documents and Blair’s guilty 

pleas).) He could not do otherwise, as logic dictates that a 

court endeavoring to conclude which subsection he pled 

guilty to violating would have to look “to the terms of the 

charging document, the terms of a plea agreement or 

transcript of colloquy between judge and defendant in which 

the factual basis for the plea was confirmed by the defendant, 

or to some comparable judicial record of this information.” 7 

 

7 As we discuss more fully herein, because “prior 

convictions that increase the statutory maximum for an 

offense are not elements of the offense,” they “may be 

determined by the District Court by a preponderance of the 
13

Shepard, 544 U.S. at 26. Each of the charging documents for 

the 1991 convictions indicates that Blair pled guilty to firstdegree robbery. 

Blair believes a new analysis begins at that point. 

Because the first-degree felony portion of Pennsylvania’s 

divisible robbery statute is itself divisible into subsections (i), 

(ii), and (iii), he says that a sentencing court must “apply the 

modified categorical approach in order to determine the least 

culpable conduct sufficient for a conviction.” (Appellant’s 

Supplemental Br. at 4 (quoting Tucker, 703 F.3d at 214).) 

True enough, that further analytical step is necessary when 

documents a sentencing court has already reviewed do not

definitively point out which of the statutory subsections was 

violated. Here they do not, and Blair thinks that that makes 

the documents irrelevant. He contends that the sentencing 

court may use the first-degree indication in the guilty plea 

only to get as far as identifying the three first-degree robbery 

subsections, and then it must choose the least culpable one

with no more reference to the charging documents or guilty 

pleas. Because the least culpable subsection is subsection 

(iii), which criminalizes robbery wherein the perpetrator

“commits or threatens immediately to commit any felony of 

the first or second degree,” 18 Pa. Cons. Stat. Ann. 

§ 3701(a)(1)(iii), and because some felonies of the first and 

second degree involve no violence, Blair believes he is home 

free. He is mistaken. 

 

evidence.” United States v. Coleman, 451 F.3d 154, 159 (3d 

Cir. 2006) (citing Almendarez-Torres v. United States, 523 

U.S. 224, 243 (1998)). 
14

There is no precedent for the argument that a 

sentencing court, having launched on the modified categorical 

approach, should stop when it gets to a statutory subsection 

and determine again whether to proceed with that approach

and whether it can consider documents it has already 

reviewed. The problem is a practical one. Even if it is true 

that subsection (iii) of § 3701(a)(1) is indivisible and 

categorically overbroad, as Blair says is the case, the 

documents that the District Court had reviewed as part of the 

modified categorical analysis plainly state that the felonies 

associated with his 1991 robbery convictions were

“aggravated assault.” (App. at 137, 154, 171, 192.) The 

search for the applicable subsection in the relevant statute 

does not send the sentencing judge into a state of amnesia. 

To shift the metaphor, the blinders are already off, and there 

is no requirement to pretend otherwise.

Though Blair wishes it were otherwise, Descamps did 

not upend the Supreme Court’s ACCA jurisprudence. It is a 

straightforward clarification of the uses to which the 

categorical approach and modified categorical approach can 

be put in determining whether a prior conviction qualifies as a 

“violent felony” under ACCA. See Descamps, 133 S. Ct. at 

2287. Despite Blair’s arguments, Descamps does not demand 

a recursive process wherein a district court that has already 

pursued the modified categorical approach in addressing a 

divisible statute is required to ignore the charging documents 

and guilty pleas it has just reviewed. Again, the several

charging documents associated with the 1991 convictions 

expressly state that the “felony committed or threatened” by 

Blair in each instance was “aggravated assault.” (App. at 

137, 154, 171, 192.) Reading each charging document and 

guilty plea as a whole, as the District Court did, it is clear that 
15

Blair “pled guilty to [each such] robbery charge on May 6, 

1991, as a felony of the first degree, thereby admitting that he 

used force causing serious bodily injury or threatened to do so 

and/or threatened to commit aggravated assault in the process 

of committing the robbery.” (App. at 16-17.) That is the 

sensible conclusion of the analysis long permitted by the 

modified categorical approach, and Descamps does nothing to 

change it.

In sum, Pennsylvania’s robbery statute is divisible and 

the District Court correctly looked to the charging documents 

to determine that Blair was convicted of a violent felony 

under ACCA. 

B. “Committed on Occasions Different from One 

Another”

Blair next contends that the District Court incorrectly 

applied ACCA because there was insufficient proof that the 

1991 convictions were for offenses committed on different

occasions, and therefore they at most amount to one predicate 

offense. As already noted, ACCA’s mandatory minimum 

sentence of 15 years becomes applicable when the defendant 

“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)

(emphasis added). Blair argues that, because he did not admit 

that the robberies occurred on different occasions when he 

pled guilty to the charges, the enhanced sentence was 

improper under Supreme Court case law and the Fifth and 

Sixth Amendments of the United States Constitution. 
16

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the 

Supreme Court held that, under the Due Process Clause of the 

Fifth Amendment and the notice and jury trial guarantees of 

the Sixth Amendment, “[o]ther than the fact of a prior 

conviction, 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.” Id. at 490.

Nevertheless, as is evident from the language of that holding, 

Apprendi did not change the pre-existing rule from

Almendarez-Torres v. United States, 523 U.S. 224 (1998), 

that a judge, rather than a jury, may determine “the fact of a 

prior conviction.” Apprendi, 530 U.S. at 490. Recently, in 

Alleyne v. United States, the Supreme Court extended 

Apprendi and held that any facts that increase a mandatory 

minimum sentence must be submitted to a jury and proved 

beyond a reasonable doubt. 133 S. Ct. 2151, 2158 (2013)

(overruling Harris v. United States, 536 U.S. 545 (2002), 

which held that Apprendi did not apply to facts that increase a 

mandatory minimum sentence). But the Court expressly 

declined to alter the Almendarez-Torres rule. Id. at 2160 n.1. 

It observed that, “[b]ecause the parties do not contest that 

decision’s vitality, we do not revisit it for purposes of our 

decision today.” Id. Almendarez-Torres therefore remains “a 

narrow exception to [Apprendi’s] general rule for the fact of a 

prior conviction.” Id. 

Blair tries to distance himself from the continuing 

control of Almendarez-Torres, but he cannot. Although he 

does not contend that Alleyne or Descamps overrules the 

Almendarez-Torres exception to Apprendi, he urges an 

impermissibly narrow construction of the exception. Blair 

asserts that it is possible he may have committed some of his 

robberies on the same occasion, “during a single criminal 
17

episode or a continuous course of conduct or simultaneously 

through accomplices.” (Appellant’s Opening Br. at 51.) 

Determining whether his 1991 convictions were the product 

of a single event or a series of episodes, he says, could only 

have been accomplished by the District Court impermissibly 

looking at “non-elemental” facts associated with the 

convictions. (Appellant’s Supplemental Br. at 6.) By “nonelemental,” he means “amplifying but legally extraneous 

circumstances[,]” as distinct from elements of the offense, the 

elements being the only facts the sentencing court can be sure 

were found by a jury. Descamps, 133 S. Ct. at 2288. 

Because Descamps condemns any reliance on non-elemental 

facts, even in the application of the modified categorical 

approach, Blair contends that the District Court erred when it 

concluded that the robberies were committed on “occasions

different from one another” and increased his sentence. 

(Appellant’s Supplemental Br. at 6-7.) 

Blair essentially tries to merge Alleyne’s extension of 

Apprendi (covering mandatory minimums) and the holding of 

Descamps (limiting the application of the modified 

categorical approach) to narrow Almendarez-Torres so that a 

court considering an ACCA sentencing enhancement cannot 

take note of information pertaining to a prior conviction, such 

as the date or location of the crimes charged. He argues that

Descamps and Alleyne “teach that strict adherence to the 

categorical approach and a narrow reading of the limited 

Almendarez-Torres exception to the rule of Apprendi is 

necessary to avoid Sixth Amendment concerns, and thus 

support ... that the sentencing court erred [in this case].” 

(Appellant’s Supplemental Br. at 6-7.) By his lights, the 

sentencing court “did what Descamps forbids” and looked at 

the non-elemental facts of date, location, and victim to 
18

determine that the felonies were committed on different 

occasions. (Id. at 8.) 

Blair’s arguments fail, however, because AlmendarezTorres has not been narrowed and remains the law. Alleyne,

133 S. Ct. at 2160 n.1. Descamps and Alleyne do nothing to

restrict the established exception under Almendarez-Torres 

that allows judges to consider prior convictions. When the 

pertinent documents show, as they do in this case, that the 

prior convictions are for separate crimes against separate 

victims at separate times, Alleyne does not somehow muddy 

the record and convert the separateness issue into a jury 

question. Alleyne was written against the backdrop of 

Almendarez-Torres and existing ACCA jurisprudence. Had 

the Supreme Court meant to say that all details related to prior 

convictions are beyond judicial notice, it would have said so

plainly, as that would have been a marked departure from 

existing law.

Arguments like Blair’s have been rejected by

numerous courts. See, e.g., United States v. Weeks, 711 F.3d 

1255, 1259 (11th Cir. 2013) (“[F]or ACCA purposes, district 

courts may determine both the existence of prior convictions 

and the factual nature of those convictions, including whether 

they were committed on different occasions ... .”); United 

States v. Elliott, 703 F.3d 378, 382 (7th Cir. 2012) (“[A] 

district court [may] make a finding for purposes of the ACCA 

as to whether a defendant committed three or more violent 

felonies or serious drug offenses on occasions different from 

one another.”); United States v. Thomas, 572 F.3d 945, 952 

n.4 (D.C. Cir. 2009) (citing cases); United States v. Hendrix, 

509 F.3d 362, 376 (7th Cir. 2007) (“[T]he district court’s 

determination from the PSR that [the defendant] had three 
19

previous convictions to satisfy the Armed Career Criminal 

Act is not impermissible factfinding, and [the defendant’s] 

sentence does not violate the Sixth Amendment.”); United 

States v. Michel, 446 F.3d 1122, 1133 (10th Cir. 2006) 

(“[W]hether prior convictions happened on different 

occasions from one another is not a fact required to be 

determined by a jury but is instead a matter for the sentencing 

court.”); United States v. Thompson, 421 F.3d 278, 285 (4th 

Cir. 2005) (“The data necessary to determine the 

‘separateness’ of the occasions is inherent in the fact of the 

prior convictions.”); United States v. Burgin, 388 F.3d 177, 

186 (6th Cir. 2004) (“[T]he determinations by a district court 

that prior felony convictions exist and were committed on 

different occasions, are so intimately related that the 

‘different occasions’ requirement of § 924(e) sufficiently 

comes within the exception in Apprendi for a prior 

conviction. Thus, ... this issue need not be pled in an 

indictment, submitted to a jury, and proved beyond a 

reasonable doubt.”); United States v. Santiago, 268 F.3d 151, 

157 (2d Cir. 2001) (“[Section] 924(e)’s ‘different occasions’ 

requirement falls safely within the range of facts traditionally 

found by judges at sentencing and is sufficiently interwoven 

with the facts of the prior crimes that Apprendi does not 

require different fact-finders and different burdens of proof 

for Section 924(e)’s various requirements.”). We agree with 

that wide consensus and conclude that neither Descamps nor

Alleyne undermines the District Court’s “fact of a prior 

conviction” analysis.

The 1991 convictions cover four robberies committed 

in October of 1990. According to the charging documents,

one robbery occurred “on or about” October 20, a second 

robbery occurred “on or about” October 22, and two 
20

robberies occurred “on or about” October 23. Although the 

dates charged were not elements of the offenses, the charging 

documents nonetheless contained factual matter that was 

sufficient for the District Court to conclude that Blair’s 1991 

convictions were for at least three robberies that occurred on 

separate occasions.

8

 Indeed, the date of an offense is integral 

to the fact of a prior conviction, and is customarily reflected 

in the kinds of documents that courts may, under Shepard and 

Taylor, use to determine whether a prior conviction exists. 

The offenses at issue here occurred on separate 

occasions because “the criminal episodes [were] distinct in 

time[,]” United States v. Schoolcraft, 879 F.2d 64, 73 (3d Cir. 

1989) (citations omitted)(internal quotation marks omitted), 

and targeted “different geographic locations and victims,” 

Thompson, 421 F.3d at 285. See also United States v. Pope, 

132 F.3d 684, 692 (11th Cir. 1998) (holding that a 

defendant’s convictions for burgling two different doctor’s 

offices located 200 yards apart constitute two crimes, even 

though the two burglaries were separated by only moments); 

United States v. Brady, 988 F.2d 664, 668-70 (6th Cir. 1993) 

(en banc) (holding that two armed robberies, separated in 

time by less than an hour, are two convictions).

9

 

 

8

There is a good argument to be made that all four of 

the 1991 convictions took place on separate occasions, 

because even the robberies that occurred on the same day 

were committed at locations roughly two miles from each 

other, and each involved a separate victim. But we need not 

reach that conclusion here, as we may affirm the District 

Court based on three prior convictions. 

9

For those reasons, Blair’s invocation of United States 

v. Fuller, 453 F.3d 274 (5th Cir. 2006), does not help his 
21

Accordingly, the District Court’s conclusion that Blair’s 1991 

convictions qualify as at least three predicate offenses under 

ACCA was correct, as was the imposition of the mandatory 

minimum sentence required by ACCA.

10

 

cause. The Fuller court held that multiple burglary 

convictions were not necessarily for crimes committed on 

separate occasions when the indictment did not indicate 

whether the defendant had pled guilty to entering separate 

apartment units in the same complex, or simply to standing as 

a lookout as his accomplice entered the apartments. Id. at 

279-80. The court recognized, however, that the case 

“turn[ed] on whether [the burglaries] occurred sequentially, 

as the district court held that they did, or simultaneously,” 

because “[t]he critical inquiry when deciding whether 

separate offenses occurred on ‘occasions different from one 

another’ for purposes of the ACCA is whether the offenses 

occurred sequentially.” Id. If they were sequential, meaning 

that one crime came to an end before the next commenced, 

they occurred on separate occasions. Id. Here, the charging 

documents clearly indicated that, at least as to the robberies 

occurring on different days, each of Blair’s robberies had 

been completed before the next commenced. They were 

separated in both time and distance and therefore could not be 

said to be a continuation of one crime.

10 Because we do not see any ambiguity as to whether 

ACCA applies here, we also reject Blair’s argument that the 

rule of lenity should apply. “The rule of lenity requires 

ambiguous criminal laws to be interpreted in favor of the 

defendants subjected to them.” United States v. Santos, 553 

U.S. 507, 514 (2008).
22

III. Conclusion

For the foregoing reasons, we will affirm Blair’s 

sentence.