NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 09a0029n.06

Filed: January 15, 2009

No. 06-5907

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUDUNE BROWN,

Defendant-Appellant.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE WESTERN

DISTRICT OF TENNESSEE

BEFORE: NORRIS, BATCHELDER, ROGERS, Circuit Judges.

ROGERS, Circuit Judge. Defendant Judune Brown challenges the 188-month prison

sentence imposed on him following his guilty plea on the charge of being a felon in possession of

a firearm. Brown argues that the district court erred in classifying him as a Armed Career Criminal

during sentencing. Because this argument is without merit, we affirm the sentence imposed by the

district court.

On April 2, 2004, Brown attempted to rob the Liberty Super Market in Memphis, Tennessee.

One employee prevented Brown from entering the market’s office area, while another employee

confronted Brown. Brown struggled with the second employee, struck the employee over the eye

with a handgun, and then fled from the store. Police officers and the market owner pursued Brown,

and a witness reported seeing Brown fire multiple shots during the pursuit. Brown then attempted
No. 06-5907

United States v. Brown

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to escape in a car, but was apprehended after he wrecked the car. Officers found a handgun on the

driver’s seat in the wrecked car.

After his arrest, police discovered that Brown was a convicted felon. As a result, he was

indicted in the United States District Court for the Western District of Tennessee on one count of

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Brown pled guilty to this

charge on February 10, 2006.

The Presentence Report (“PSR”) prepared for Brown’s sentencing hearing determined that

he should be assigned an offense level of 34 under the Sentencing Guidelines. This level was based

on Brown’s classification as an Armed Career Criminal under 18 U.S.C. § 924(e) and Brown’s use

of his gun in connection with a crime of violence. U.S.S.G. § 4b1.4(b)(3)(A). The PSR listed three

prior aggravated robbery convictions as the predicate offenses for Brown’s Armed Career Criminal

classification. The district court accepted this classification and the corresponding offense level of

34. The court subtracted three levels based on Brown’s acceptance of responsibility. 

The court’s calculations produced a final offense level of 31, which, with Brown’s criminal

history category of VI, resulted in a Guidelines sentencing range of 188 to 235 months in prison.

The district court addressed the relevant sentencing factors under 18 U.S.C. § 3553(a) and concluded

that Brown should serve a term of 188 months in prison, to be followed by three years of supervised

release. 

Brown’s sole argument on appeal is that the district court erred in classifying him as an

Armed Career Criminal. Brown argues that this classification was inappropriate because his three
No. 06-5907

United States v. Brown

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predicate offenses “were the result of a single arrest, a single court hearing, and all the sentences

imposed ran concurrently.” Because these facts are not relevant to Brown’s classification under the

Armed Career Criminal Act (“ACCA”), the district court’s classification and resulting sentence were

proper.

The district court properly classified Brown as an Armed Career Criminal under 18 U.S.C.

§ 924(e)(1). The statute provides:

In the case of a person who violates section 922(g) of this title and has three previous

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

occasions different from one another, such person shall be fined under this title and

imprisoned not less than fifteen years, and, notwithstanding any other provision of

law, the court shall not suspend the sentence of, or grant a probationary sentence to,

such person with respect to the conviction under section 922(g).

§ 924(e)(1). This court reviews de novo the district court’s legal determination that Brown’s

offenses were “committed on occasions different from one another.” United States v. Hill, 440 F.3d

292, 295 (6th Cir. 2006). While in some cases this determination involves a detailed analysis of the

distinct nature of a series of uninterrupted offenses, see, e.g., United States v. Murphy, 107 F.3d 1199

(6th Cir. 1997), this is not one of those cases. Brown has three prior convictions for aggravated

robbery involving three different victims on three different days in October and November of 1996.

The district court correctly treated these convictions as separate episodes when classifying Brown

as an Armed Career Offender.

In his brief, Brown concedes this fundamental point: “[t]he defendant concedes that under

this Court’s case law regarding whether convictions qualify as separate occasions, the three

convictions . . . qualify as three separate crimes.” Instead, Brown argues that classifying him as an
No. 06-5907

United States v. Brown

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Armed Career Criminal “does not advance Congress’ intent to punish recidivist offenders under the

ACCA” because “the predicate offenses of the defendant were the result of a single arrest, a single

court proceeding, and resulted in concurrent sentences.” On several occasions, this court has

explicitly rejected the argument that these facts make classification under § 924(e)(1) improper. See

United States v. Anderson, 76 F.3d 685, 691 (6th Cir. 1996) (“[D]efendant’s receipt of concurrent

sentences for these three prior felony drug convictions does not mean that the convictions were part

of the same criminal episode.”); United States v. Roach, 958 F.2d 679, 683 (6th Cir. 1992) (finding

Armed Career Criminal status appropriate even though “all of the convictions occurred on the same

date and stemmed from the same indictment”); United States v. White, No. 05-6737, 2007 WL

1217960, at *3 (6th Cir. April 25, 2007) (holding these same facts irrelevant to the ACCA

classification); James v. United States, 217 F. App’x 431, 441 (6th Cir. 2007); United States v.

Perkins, 242 F. App’x 338, 342-43 (6th Cir. 2007). Therefore, the district court appropriately

rejected this argument and classified Brown as an Armed Career Criminal under § 924(e)(1).

For these reasons, we AFFIRM Brown’s sentence.