UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5259

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

AARON BRYANT KEYS,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Greenville. Henry M. Herlong, Jr., District

Judge. (CR-05-258)

Submitted: September 29, 2006 Decided: December 5, 2006

Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Christopher F. Cowan, COWANOWEN, P.C., Richmond, Virginia, for

Appellant. Reginald I. Lloyd, United States Attorney, A. Lance

Crick, Assistant United States Attorney, Greenville, South

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
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PER CURIAM:

Aaron Bryant Keys pled guilty to possession of a firearm

by a convicted felon, 18 U.S.C.A. §§ 922(g)(1), 924(e) (West 2000

& Supp. 2006), and was sentenced as an armed career criminal to the

mandatory minimum term of fifteen years imprisonment. Although

Keys did not contest his status as an armed career criminal in the

district court, he contends on appeal that the court committed

reversible error in sentencing him as an armed career criminal

because (1) it failed to find that his prior burglary conviction

was a “generic burglary” that qualified as a violent felony; (2)

the sentence violated his Sixth Amendment right under United

States v. Booker, 543 U.S. 220 (2005), and Shepard v. United

States, 544 U.S. 13 (2005); and (3) his two prior drug convictions

should have been counted as one because they were part of a single

criminal episode. We affirm.

Because Keys did not raise any of the issues presented

here in the district court, our review is for plain error. United

States v. Olano, 507 U.S. 725, 732-37 (1993); United States v.

Mackins, 315 F.3d 399, 406 (4th Cir. 2003). 

First, under § 924(e)(1), a defendant is an armed career

criminal if he has three prior convictions for either a violent

felony or a serious drug offense. The definition of a “violent

felony” includes burglary. 18 U.S.C.A. § 924(e)(2)(B)(ii). In

Taylor v. United States, 495 U.S. 575, 598-99 (1990), the Supreme
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Court held that “burglary,” for purposes of § 924(e), is limited to

“generic” burglary, that is, the “unlawful or unprivileged entry

into, or remaining in, a building or structure with intent to

commit a crime.” When the issue is contested, and the district

court must determine whether a prior conviction constitutes a

violent felony, the court must “look only to the fact of conviction

and the statutory definition of the prior offense.” Taylor, 495

U.S. at 602 (quoted in United States v. Simms, 441 F.3d 313, 315

(4th Cir. 2006), cert. denied, 127 S. Ct. 233 (2006)). Taylor held

that a court normally could look only to the fact of the conviction

and the statutory definition, but because some states define

burglary broadly, to include entry into boats and cars, Taylor held

that the district court in such cases might examine the indictment

or information and the jury instructions to determine whether the

defendant was charged with entry of a building and the jury had to

so find in order to convict. Shepard, 544 U.S. at 16-17. 

Here, Keys correctly points out that South Carolina law

defines a “building,” for purposes of the burglary statutes, S.C.

Code Ann. §§ 16-11-311 to 16-11-313 (2005), as “any structure,

vehicle, watercraft, or aircraft.” S.C. Code Ann. § 16-11-310(1).

He argues that the court erred in failing to determine that his

prior conviction for “burglary-building” qualified as a violent

felony. However, his claim fails because Keys acknowledged at

sentencing, through counsel, that he burglarized a building,
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specifically, a restaurant. Because he did not challenge his armed

career criminal status, the district court did not plainly err on

this ground in accepting the recommendation in the presentence

report that Keys had the requisite predicate convictions.

With respect to the claimed Sixth Amendment error under

Booker and Shepard, because Keys failed to contest his armed career

criminal status, the district court made no findings concerning his

prior convictions. Therefore, the sentence does not violate the

Sixth Amendment under Booker or Shepard, see United States v.

Collins, 412 F.3d 515, 523 (4th Cir. 2005), and the district court

did not plainly err on this ground in imposing an armed career

criminal sentence.

Finally, under § 924(e)(1), the predicate offenses must

have been “committed on occasions different from one another

. . . .” Keys was arrested for distributing crack in Greenville,

South Carolina, on January 18, 1994. He was released on bond and

arrested again in Greenville for selling crack on February 17,

1994. (JA-I at 70, 72; JA-II at 110-11). This court has held

that, for purposes of § 924(e), “offenses occur on occasions

different from one another when each offense arose out of a

separate and distinct criminal episode.” United States v. Leeson,

453 F.3d 631, 640 (4th Cir. 2006) (internal quotation omitted).

Leeson sets out the following factors for the district court to
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consider in determining whether two prior offenses arose out of a

single criminal episode: 

(1) whether the offenses arose in different geographic

locations; (2) whether the nature of each offense was

substantively different; (3) whether each offense

involved different victims; (4) whether each offense

involved different criminal objectives; and (5) after the

defendant committed the first-in-time offense, did the

defendant have the opportunity to make a conscious and

knowing decision to engage in the next-in-time offense.”

Id. (citing United States v. Letterlough, 63 F.3d 332, 335-37 (4th

Cir. 1995)). 

Moreover, “if any one of the factors has a strong

presence, it can dispositively segregate an extended criminal

enterprise into a series of separate and distinct episodes.”

Leeson, 453 F.3d at 640-41. In this case, the fifth factor is

especially strong. A month elapsed between Keys’ first drug

offense and his second, giving him ample time to decide to commit

the second offense. Therefore, we conclude that the district court

did not plainly err in accepting the recommendation in the

presentence report that the offenses were distinct, and not part of

a single criminal episode. 

Accordingly, we affirm the sentence imposed by the

district court. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

AFFIRMED