### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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-m o nth sentence imposed following his gu ilty p lea 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 arme d 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 th at h is three predicate offenses occurred on occasions different from one another and that the district U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 14 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-10836 Document: 00511633137 Page: 1 Date Filed: 10/14/2011No. 09-10187

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 beyon d a reasonable doubt to a jury, or admitted by him. In his final point of error, Martin asserts that the district co u rt e rred 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 re vi ew is for plain error. See, e.g. , U

n i t e d S t ates v. Henao-Melo , 591 F.3d 798, 801 (5th Cir. 2009), cert. denied , 1 3 0 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 erro r , M artin must show a forfeited err o r 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 erro r i s e s t ablished, we still have discretion whether or not to correct it, an d w e generally will do so only if the

error seriously af

fects 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 f irearm is subject to a minimum sentence of 15 years if he has three p ri o r 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 d e l iv e ry o f a controlled substance. The governmen t e s t ablished 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 o f th e conviction by a preponderance of the evidence.” Barlow , 17 F.3d at 89. Marti n di d 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 o f a controlled substance, (2) that these prior convictions were serious drug o f f e n s e s , nor (3) that his guilty pleas in the prior c o nvictions 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 State s 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 dif f e r ent 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 Shepard

approved 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 docu m e nt s , Martin has not shown any error, much less one that is clear or obvious. See Puckett, 129 S. Ct. at 1429. M artin also insists that the act of being a career offender is a separat e offense, that the “different occasions” factor is an element of the offense, and that his e nhanced sentence under the ACCA is unconstitutional because the facts
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establishing that he had three prior convictions fo r o ffenses committed on diffe r e nt occasions were not alleged in the indictment, proven beyond a reasonab l e d o ub t 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 2 5 4 ; 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 b etween the firearm allegedly used in the kidnaping and the firearm that formed the basis for his conviction in this case. The government correctly counter s that Martin validly waived his right to appeal his conviction and sentence, and this issue d o e s 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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