IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10836

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ANTHONY MARTIN,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:09-CR-35-1

Before WIENER, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Anthony Martin appeals the 327-month sentence

imposed following his guilty plea conviction of being a convicted felon in

possession of a firearm under 18 U.S.C. § 922(g). Martin claims the district

court erred in sentencing him as an armed career criminal under the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). He contends that the

government did not submit any evidence establishing that his three predicate

offenses occurred on occasions different from one another and that the district

United States Court of Appeals

Fifth Circuit

F I L E D

October 14, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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court did not make any finding regarding same. Martin alternatively contends

that the “different occasions” factor is an element of the offense that must be

admitted by the defendant or proven beyond a reasonable doubt. Similarly, he

argues that his ACCA sentence violates the Fifth and Sixth Amendments of the

Constitution because the facts establishing that he had three prior convictions

for offenses committed on different occasions were not alleged in the indictment,

proven beyond a reasonable doubt to a jury, or admitted by him. In his final

point of error, Martin asserts that the district court erred by enhancing his

sentence for use or possession of a firearm in connection with a crime of violence. 

As Martin’s claims concerning the district court’s application of the ACCA

were not presented in district court, our standard of review is for plain error. 

See, e.g., United States v. Henao-Melo, 591 F.3d 798, 801 (5th Cir. 2009), cert.

denied, 130 S. Ct. 2392 (2010); cf. United States v. Neal, 578 F.3d 270, 272-73

(5th Cir. 2009) (“To preserve error, an objection must be sufficiently specific to

alert the district court to the nature of the alleged error and to provide an

opportunity for correction.”). To establish reversible plain error, Martin must

show a forfeited error that is clear or obvious and that affects his substantial

rights. See Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 1429 (2009);

Henao-Melo, 591 F.3d at 801. Even if such error is established, we still have

discretion whether or not to correct it, and we generally will do so only if the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings. See Henao-Melo, 591 F.3d at 802.

Under § 924(e)(1), a defendant convicted of being a felon in possession of

a firearm is subject to a minimum sentence of 15 years if he has three prior

convictions for “a violent felony or a serious drug offense, or both, committed on

occasions different from one another.” Martin’s sentence was enhanced based

on his four prior Texas convictions for delivery of a controlled substance. The

government established that those convictions were for serious drug offenses

which occurred on separate occasions by providing the indictment, judgments,

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and judicial confessions for each offense. See United States v. Fuller, 453 F.3d

274, 279 (5th Cir. 2006); United States v. Barlow, 17 F.3d 85, 89 (5th Cir. 1994). 

“Once the Government establishes the fact of a prior conviction based on a guilty

plea, the defendant must prove the invalidity of the conviction by a

preponderance of the evidence.” Barlow, 17 F.3d at 89.

Martin did not meet this burden. He neither denied that his prior drug

offenses occurred on different occasions nor introduced any evidence, much less

a preponderance, that his offenses occurred simultaneously. Neither did Martin

dispute (1) the existence of his four convictions for delivery of a controlled

substance, (2) that these prior convictions were serious drug offenses, nor (3)

that his guilty pleas in the prior convictions were entered with adequate

procedural safeguards. The district court had ample bases to determine that

Martin’s drug offenses occurred on four different occasions and were separate. 

See United States v. White, 465 F.3d 250, 254 (5th Cir. 2006). Therefore, the

district court did not err when it applied the ACCA enhancement.

As Martin cites no authority for the proposition that the district court

must make an explicit finding on the record that his prior convictions were for

offenses committed on occasions different from one another, we need not and

therefore have not addressed that proposition. Moreover, contrary to his

argument that the district court relied solely on the presentence report’s

characterization of his prior convictions, the district court had before it Shepardapproved documents about the prior drug convictions, including the indictment,

judgments, and judicial confessions. See Shepard v. United States, 544 U.S. 13,

26 (2005). As no precedential case requires the district court explicitly to show

or state that it reviewed the relevant documents, Martin has not shown any

error, much less one that is clear or obvious. See Puckett, 129 S. Ct. at 1429. 

Martin also insists that the act of being a career offender is a separate

offense, that the “different occasions” factor is an element of the offense, and that

his enhanced sentence under the ACCA is unconstitutional because the facts

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establishing that he had three prior convictions for offenses committed on

different occasions were not alleged in the indictment, proven beyond a

reasonable doubt to a jury, or admitted by him. These contentions are

foreclosed. See Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v.

Almendarez-Torres, 523 U.S. 224, 235 (1998); White, 465 F.3d at 254; United

States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005); United States v. Stone, 306

F.3d 241, 243 (5th Cir. 2002). 

Finally, Martin challenges the district court’s determination that he used

or possessed a firearm in connection with a “crime of violence,” which resulted

in his being assessed an offense level of 34 under U.S.S.G. § 4B1.4(b)(3)(A). He

argues that the Texas offense of kidnaping is not a “crime of violence” and that

there was no clear connection between the firearm allegedly used in the

kidnaping and the firearm that formed the basis for his conviction in this case.

The government correctly counters that Martin validly waived his right to

appeal his conviction and sentence, and this issue does not fall within the

waiver’s exceptions. See United States v. Bond, 414 F.3d 542, 544 & n.3 (5th Cir.

2005). 

AFFIRMED.

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