UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellant,

v. MARC DUTCH, Defendant - Appellee. No. 17-2219 (D.C. No. 1:16-CR-01424-MV-1) (D.N.M)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , EBEL , and PHILLIPS , Circuit Judges.

________________ _________________ The government appeals the sent ence of Marc Dutch. It contends the district court erred in refusing to apply the Armed Career Criminal Act (“ACCA”). We agree with the government that the ACCA governs because Dutch’s prior crimes were “committed on occasions di fferent from one another.” 18 U .S.C. § 924(e)(1). Exercising jurisdiction under 18 U.S.C. § 3742(b), we reverse a nd remand for resentencing.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 1 0th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 1, 2018
Elisabeth A. Shumaker Clerk of Court2 I In 2016, Dutch was arrested after fleeing the scene of a traffi c accident. Officers discovered a loaded re volver and ammunition in a subse quent search. Dutch pled guilty to being a felon in possession of a firearm and amm unition in violation of 18 U.S.C. § 922(g)(1), without the benefit of a plea agreement. Dutch’s Presentence Investigatio n Report recommended that he be subject to the ACCA based on three prio r bank robbery convictions. In 200 6, Dutch pled guilty to three counts of bank robbery a nd aiding and abetting in viol ation of 18 U.S.C. §§ 2113(a) and 2. The government offered the indictment, Dutch ’s plea agreement, and the judgment from that case . According to the indictment, the bank robberies occurred on or about: (1) November 12, 2005, at First Financia l Credit Union, 2700 San Mateo Boulevard NE, Albuque rque, NM; (2) November 25, 2005, at Ironstone Bank, 7300 Jefferson NE, Albuquer que, NM; and (3) November 26, 2005, at Sandia Laboratory Federal Credit Union , 3707 Juan Tabo Blvd., Albuquer que, NM. The district court concluded that the government had not met it s burden to establish the ACCA applied becau se the record did not indicate whether Dutch’s crimes occurred on different occ asions or as part of one contin uous drug-fueled enterprise. It noted that Dutc h’s long history of substance ab use and mental illness likely deprived him o f a meaningful opportunity to cease his cr iminal conduct. Dutch was sentenced to 60 months . The government timely appeal ed.3 II We review the district court’s decision whether to apply the AC CA de novo. United States v. Delossantos, 680 F.3d 1217, 1219 (10th Cir. 20 12). A defendant is subject to an enhanced sentence un der the ACCA if he has three prior violent felony or serious drug offense convict ions that were “committed on occ asions different from one another.” § 924(e)(1). The government must prove by a pre ponderance of the evidence that prior offenses occ urred on different occasions. Delossantos, 680 F.3d
at 1219. This court has repeatedly held that predicate offenses occurred on different occasions for the purposes of § 924(e)(1) when the offenses too k place at different times or locations. S ee United States v. Harris, 447 F.3d 1300 , 1305 n.2 (10th Cir. 2006) (“Separateness under the A CCA turns on when and where the crimes were committed.”); United States v. Michel, 446 F.3d 1122, 1134 (10t h Cir. 2006) (enhancement applied because def endant “committ ed three success ive criminal incidents at three separate lo cations against three different v ictims”); United States v. Johnson, 130 F.3d 1420, 1431 (10t h Cir. 1997) (“[O]ffenses comm itted at distinct, different times will be treated a s separate predicate offenses for purposes of § 924(e)(1).” (quotation omitted )); United States v. Tisdale, 9 21 F.2d 1095, 1099 (10th Cir. 1990) (considering wh ether prior offenses were “dist inct in time” and “committed at different locations ”). In determining the time a nd place of prior offenses, sentencing courts may c onsult certain records, includ ing charging documents. See Harris, 447 F.3d at 1305 (citing Shepard v. Uni ted States, 544 U.S.4 13, 20-21 (2005)). “The time, pl ace, and substance of the prio r convictions can ordinarily be ascertained from c ourt records associated with th ose convictions . . . .” Id. at 1304. Dutch’s prior indictment demonstr ates that his three bank robbe ries occurred at different times and places, a nd involved different banks. T his information satisfies the government’s burde n of proving by a preponderance of the ev idence that the offenses were “committed on occas ions different from one anothe r.” § 924(e)(1). Although two of the robberies o ccurred within a day of one anot her, we have held that even crimes occurring in qui ck succession qualify as separ ate. See Michel, 446 F.3d at 1134 (three separate cri mes “all occurred within a shor t period of time”); Tisdale, 921 F.2d at 109 9 (defendant’s three burglaries at thre e separate businesses in same shopping mall on same night w ere separate for the purpose of § 924(e)(1)). In ruling otherwise, the distric t court relied heavily on Dutch ’s argument that his drug use rendered him unable to halt his crim inal activitie s. Dutch is correct that we do sometimes consider whether a defendant had the opportunit y to cease his conduct in applying § 92 4(e)(1). But we do so to help determin e whether the offenses were in fact distinct in time, rat her than as a separa te inquiry into the defendant’s state of mind. See M ichel, 446 F.3d at 1134 (consi dering the fact that defendant “had the opportunity after assaulting the first offic er simply to flee the scene rather than attempting to rob the convenience store and assault ing the second officer”); Tisdale, 921 F.2d at 1098-99 (not ing that “[a]fter the defendan t successfully completed burglarizing one business, he wa s free to leave” (quotation omi tted)).5 Moreover, Dutch necessarily adm itted that he possessed the requ isite mens rea as to each independent robbery by pl eading guilty to three separat e counts. His voluntary intoxication does not mean that he was denied a meaningful oppo rtunity to cease his conduct. See United States v. Taylo r, 454 F.3d 1075, 1081 (10t h Cir. 2006) (noting that § 2113(a) is a general intent crime); United States v. Williams , 403 F.3d 1188, 1194 (10th Cir. 2005) (voluntary intoxi cation is not a defense to ge neral intent crimes). We also reject Dutch’s argument that he did not admit to aiding and abetting the bank robberies on different o ccasions. Regardless of the f acts underlying Dutch’s aiding and abetting, the governme nt offered proof that Dutch pl ed guilty to three counts of substantive bank robbery in violation of 18 U.S.C. § 2113(a). And as explained supra, the i ndictment demonstrates that the three ban k robberies occurred on different dates and at d ifferent locations. Dutch raises two alternative issu es that are foreclosed by circ uit precedent. See United States v. White, 782 F.3d 1118, 1126-27 (10th Cir. 2 015) (“One panel of this court cannot overrule the j udgment of another panel absent en banc consideration or an intervening Supreme Court decision that is contrary to or invalidates our previous analysis.” (quotation omitted)). We have held that ju dges may find prior offenses occurred on different o ccasions without violating the Sixth Amendment. Harris, 447 F.3d at 1305; Miche l, 446 F.3d at 1132-33. Subsequ ent decisions addressing how courts may determi ne the elements of a prior off ense, see, e.g., Mathis v. United States, 136 S . Ct. 2243 (2016), have not under mined that holding.6 This court has also already held that bank robbery in violation of § 2113(a) is a violent felony. United States v . McCranie, 889 F.3d 677, 677-7 8 (10th Cir. 2018).
III
We REVERSE the district court’s conclusi on that the ACCA does not apply and REMAND with instructions to VACATE Dutch’s sentence and resentence him consistent with this order and judgment.

Entered for the Court

Carlos F. Lucero Circuit Judge