FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 16, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-13491

Non-Argument Calendar

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D. C. Docket No. 04-00252-CR-4

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

ZACKERY SHANNON, 

a.k.a. Yah Cooh, 

a.k.a. Ontario Krum, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(May 16, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
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Zackery Shannon appeals the decision of the district court to sentence him as

a career offender based on “two prior felony convictions of either a crime of

violence or a controlled substance offense” within 15 years of the instant offense. 

U.S.S.G. § 4B1.1. Although Shannon committed the prior offenses outside the 15-

year window preceding the instant offense, the convictions counted because the

sentences imposed for those convictions resulted in Shannon being incarcerated

during some part of the 15-year window. See U.S.S.G. § 4A1.2(e)(1). Shannon

admitted at sentencing that he “technically” qualified as a career offender, but now

argues that his sentence is erroneous and unconstitutional. We affirm.

I. BACKGROUND

Three offenses in Shannon’s criminal history—two prior offenses and the

instant offense—are central to this appeal. Shannon committed the first offense in

May 1986 and was sentenced to one year of probation. In August 1986, Shannon’s

probation officer filed an affidavit of violation of probation and, approximately

four-and-a-half years later, in March 1991, the government held a revocation

hearing. Shannon’s probation was revoked, and he was sentenced to 18 months of

imprisonment. Shannon was released in July 1991.

In the meantime, Shannon committed the second offense, in April 1988, and

was sentenced to 90 days of imprisonment and five years of probation. In October
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1988, Shannon’s probation was revoked and he was sentenced to 20 months of

imprisonment. Shannon was released in December 1989. Shannon committed the

instant offense in July 2004 and pleaded guilty. 

The presentence investigation report recommended that Shannon be

sentenced as a career offender. The government explained at sentencing that one

reason it had agreed to recommend a sentence at the low end of the sentencing

guidelines was that Shannon “faced the uncertainty of that career offender issue.” 

Shannon’s attorney stated that he was troubled by the career offender designation,

but admitted that Shannon “meets the requirements of a career offender . . .

[although in] a very technical manner.” The district court sentenced Shannon to

156 months of imprisonment and five years of supervised release. Shannon

waived “any objections to the finding of fact, conclusions of law or to the manner

in which the sentence was pronounced.” 

II. STANDARD OF REVIEW

When a defendant waives an objection in the district court, we review that

objection on appeal for plain error. United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir. 2005). 

III. DISCUSSION

Shannon argues there is “no reasonable temporal nexus” between the two
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prior convictions and the instant offense and his sentence is unconstitutional. We

first discuss whether the district court correctly applied the career offender

provision of the sentencing guidelines. We next discuss whether Shannon’s

arguments have merit. 

A defendant who is at least 18 years old when he commits an offense “is a

career offender if . . . the instant offense of conviction is a felony that is either a

crime of violence or a controlled substance offense . . . and . . . the defendant has at

least two prior felony convictions of either a crime of violence or a controlled

substance offense.” U.S.S.G. § 4B1.1; see United States v. Cornog, 945 F.2d

1504, 1507 (11th Cir. 1991). Prior felony convictions under section 4B1.1 are

counted using the definitions and instructions for computing criminal history in

section 4A1.2. U.S.S.G. § 4B1.2 cmt. n.3. A prior conviction is “any sentence

previously imposed upon adjudication of guilt . . . for conduct not part of the

instant offense.” U.S.S.G. § 4A1.2(a)(1). A prior conviction is counted when

“imprisonment exceeding one year and one month . . . was imposed within fifteen

years of the defendant’s commencement of the instant offense.” U.S.S.G. §

4A1.2(e)(1). A prior conviction also is counted when “any prior sentence of

imprisonment exceeding one year and one month, whenever imposed, . . . resulted

in the defendant being incarcerated during any part of such fifteen-year period.” 
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Id.

Sentences imposed upon revocation of probation can “affect the time period

under which sentences are counted under [section] 4A1.2(e)(1) [of the sentencing

guidelines].” Cornog, 945 F.2d at 1510. “In the case of a prior revocation of

probation . . . [or] parole . . . [the sentencing court should] add the original term of

imprisonment to any term of imprisonment imposed upon revocation.” U.S.S.G. §

4A1.2(k)(1). “Thus, the court ordinarily should count a conviction that is imposed,

and on which the defendant is paroled, outside the window, when the defendant

later—within the window—is incarcerated for breaching the conditions of his

parole.” Cornog, 945 F.2d at 1510. 

The district court correctly applied the sentencing guidelines in sentencing

Shannon as a career offender. Because Shannon committed the instant offense in

July 2004, the 15-year window for prior offenses opened in July 1989. Shannon

committed the first prior offense in May 1986 and the second prior offense in April

1988. When Shannon violated his probation for each offense, he received

sentences of more than one year and one month of imprisonment that respectively

ended July 1991 and December 1989. Because both “prior sentence[s] of

imprisonment exceed[ed] one year and one month” and “resulted in [Shannon]

being incarcerated” anytime after July 1989, the district court did not err in
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counting the prior convictions toward Shannon’s career offender status. 

Shannon erroneously argues that there is “no reasonable temporal nexus”

between the two prior convictions and the instant offense. Because “reasonable”

takes its meaning directly from the relevant provisions of the sentencing

guidelines, which designate Shannon as a career offender, this argument fails. 

Shannon also argues that his designation as a career offender is inconsistent with

the “spirit” of the career offender laws because counting a sentence imposed upon

revocation of probation is “tantamount to turning a probation violation into a

‘crime of violence’ or ‘controlled substance offense.’” This flawed argument

ignores both section 4A1.2(k)(1) of the sentencing guidelines and our view that “a

court ordinarily should count a conviction that is imposed, and on which the

defendant is paroled, outside the window, when the defendant later—within the

window—is incarcerated for breaching the conditions of his parole.” Cornog, 945

F.2d at 1510. Shannon’s bare assertion that counting the two prior convictions “is

not consistent with constitutional due process of law” also fails. 

We recently declined to recognize an exception to counting prior convictions

where the prior convictions fell within the relevant window solely because

conviction and sentencing were delayed. See United States v. Adams, 403 F.3d

1257, 1260 (11th Cir. 2005). In Adams, the district court increased the defendant’s
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criminal history score based on a prior conviction within 10 years of the instant

offense. The defendant committed the prior offense outside the 10-year window,

but, due to a “a busy state-court docket,” was not convicted and sentenced until

seven months later. Id. at 1259. The delay caused the conviction to come within

the ten-year window. On appeal, “[w]e decline[d] [the defendant’s] invitation to

recognize an exception to the 10-year rule where, due to an alleged backlog in the

state-court system in which he was convicted, imposition of the sentence for his

prior conviction was delayed.” Id. at 1260. We reasoned that such an exception

would be contrary to the “plain and ordinary meaning” of the sentencing

guidelines. Id. As Shannon observes, the delay in sentencing in his case was

longer than in Adams, but Shannon fails to explain why the reasoning in Adams

does not apply with equal force in his case. 

IV. CONCLUSION

The district court did not err, plainly or otherwise, in sentencing Shannon as

a career offender. 

AFFIRMED.