FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 29, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11030

Non-Argument Calendar

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D. C. Docket No. 88-00488-CR-RLV-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD EDWARD MILES,

a.k.a. Jim Gene Tyler,

a.k.a. Gene,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(January 29, 2009)

Before CARNES, BARKETT, and FAY, Circuit Judges.

PER CURIAM:
Donald Edward Miles appeals his 15-year sentence for possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g), 924(e). Miles’

sentence was enhanced pursuant to § 924(e), the Armed Career Criminal Act,

because the district court found that Miles had three qualifying prior convictions:

two burglaries and possession of an unregistered firearm. Miles makes two

arguments. First, he contends that his two prior burglary convictions are not

separate criminal offenses under 18 U.S.C. § 924(e)(1). Second, he contends that

his prior conviction for possession of an unregistered firearm is not a violent felony

under 18 U.S.C. § 924(e). Both issues are questions of law, and we review de

novo the district court’s judgment on them. See United States v. Spears, 443 F.3d

1358, 1360 (11th Cir. 2006) (citation omitted); United States v. Rainey, 362 F.3d

733, 734 (11th Cir. 2004).

The Armed Career Criminal Act provides that a felon convicted of illegal

possession of a firearm under 18 U.S.C. § 922(g) who has three previous

convictions for a “violent felony,” a serious drug offense, or both, is subject to a

mandatory minimum sentence of not less than fifteen years imprisonment. See 18

U.S.C. § 924(e). Under the ACCA, a felony involving conduct that “presents a

serious potential risk of physical injury to another” qualifies as a “violent felony.”

See id. § 924(e)(2)(B)(ii). Each predicate offense must have occurred on

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“occasions different from one another.” See id. at 924(e)(1). We have interpreted

that language to mean that “a defendant is subject to the sentence enhancement of

the ACCA if each of the three previous convictions arose out of a separate and

distinct ‘criminal episode.’” See United States v. Pope, 132 F.3d 684, 689 (11th

Cir. 1998) (citations omitted).

Miles contends that his burglary convictions should not be considered

separate and distinct criminal episodes because both burglaries took place on the

same night. That argument is knocked out by the Pope decision, which held that

two burglaries were separate criminal episodes even though the burglaries occurred

on the same night at two offices located only two hundred yards apart. Id. at 692.

There, we noted that “[m]ere temporal proximity is ordinarily insufficient to merge

multiple offenses into a single criminal episode.” Id. at 690. Instead, “the

‘successful’ completion of one crime plus a subsequent conscious decision to

commit another crime makes that second crime distinct from the first for the

purposes of the ACCA.” Id. at 692. Here, the two burglaries occurred at two

separate businesses located in two separate places. Miles completed the first

burglary, then traveled to the next location and made a conscious decision to

commit the second burglary. The district court reviewed Miles’ burglary

convictions and properly determined that the two burglaries were separate criminal

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episodes for the purposes of the ACCA.

Miles also contends that the district court erred in considering his conviction

for possession of an unregistered firearm a “violent felony” because we do not

consider possession of a firearm by a felon to be a “violent felony.” See United

States v. Oliver, 20 F.3d 415 (11th Cir. 1994). That argument fails. Miles was

convicted for possession of an unregistered sawed-off shotgun—a type of firearm

specified for registration under the National Firearms Act. See 26 U.S.C. §§

5845(a), 5861(d). We have recognized “that the possession of certain kinds of

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weapons categorically presents the potential risk of physical injury warranting

sentence enhancement for being a crime of violence.” United States v. Owens, 447

F.3d 1345, 1347 (11th Cir. 2006) (quotation marks omitted). Therefore we have

held that a conviction under 26 U.S.C. § 5861(d) is a “crime of violence” under §

4B1.2 of the Sentencing Guidelines. Id.; see also U.S.S.G. § 4B1.2(a)(2) cmt. n.1

(“Unlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a sawedoff shotgun . . .) is a ‘crime of violence.’”).

“We have also held that cases interpreting ‘crime of violence’ under § 4B1.2

provide important guidance in determining what is a ‘violent felony’ under the

ACCA because the definition for both terms are virtually identical.” United States

 The definition of “firearm” under the NFA includes “a shotgun having a barrel or barrels 1

of less than 18 inches in length.” 26 U.S.C. § 5845(a).

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v. Taylor, 489 F.3d 1112, 1113 (11th Cir. 2007) (quotation marks omitted).

Because a conviction under 26 U.S.C. § 5861(d) is a “crime of violence” under the

Sentencing Guidelines, the district court did not err in concluding that the same

conviction also qualified as a “ violent felony” for the purposes of the ACCA.

AFFIRMED.

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