FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 25, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-11854

Non-Argument Calendar

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D. C. Docket No. 05-00107-CR-3-RV

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

PETROSE DEMON HOLLAND, 

a.k.a. Petrose Demond Holland, 

a.k.a. Peter Demon Holland, 

a.k.a. PEP, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(October 25, 2006)

Before DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM:
Prior to Holland’s guilty plea, the government filed a notice that Holland was subject to 1

enhanced penalties because of his prior convictions. In addition to the three October 12, 1998

convictions, this notice listed a fourth conviction for possession of crack cocaine on June 19, 1998.

The government abandoned reliance on the June 19, 1998 conviction after it decided that this

2

After pleading guilty, Petrose Demon Holland appeals his 88-month

sentence for possession with intent to distribute a controlled substance, in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(C), and (b)(1)(D), and possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g), and 924(e), the Armed Career

Criminal Act (“ACCA”). After review, we affirm.

I. BACKGROUND

At sentencing, Holland’s presentence investigation report (“PSI”) indicated

that Holland had three prior serious drug convictions on October 12, 1998 for three

counts of “possession of a controlled substance sell/deliver” and three counts of

possession of a controlled substance and thus was an armed career criminal under

18 U.S.C. § 924(e). Under § 924(e), a defendant who violates 18 U.S.C. § 922(g)

is an armed career criminal subject to a mandatory minimum fifteen-year sentence

if he has three prior convictions “for a violent felony or a serious drug offense, or

both, committed on occasions different from one another . . . .” 18 U.S.C. §

924(e)(1). The parties do not dispute that Holland’s convictions qualify as serious

drug offenses. Rather, the dispute here is whether two of his three convictions

were “committed on occasions different from one another” under § 924(e).

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conviction did not qualify as a serious drug offense within the meaning of § 924(e)(2)(A)(ii).

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In this regard, the PSI also noted that the offense conduct of two of the three

October 12 convictions occurred on the same day, October 8, 1997, in Pensacola,

Florida. According to the PSI, Holland committed one of the October 8 offenses in

the area of Q and Moreno Street. The second October 8 offense occurred in the

area of S and Blount Street. The third October 12 conviction involved offense

conduct on October 22, 1998 and occurred in the area of Q and Blount Street. 

Holland objected to the armed career criminal enhancements, arguing that

his October 12, 1998 convictions were part of a “single criminal episode” and did

not qualify as offenses “committed on occasions different from one another” under

§ 924(e). Holland did not contest the nature of his offenses, but rather whether his

offense met the different occasion requirement in § 924(e).

At sentencing and without objection, the government introduced into

evidence certified copies of Holland’s informations and arrest reports for the three

October 1998 offenses. In addition, the district court heard the testimony of Peter

Steven Bondjuk, Special Agent with the Bureau of Alcohol, Tobacco, Firearms and

Explosives. Bondjuk testified that he obtained copies of Holland’s informations,

sentences and judgement for the October 1998 convictions. Bondjuk testified that

two of the three cases occurred on October 8, 1997. Bondjuk also had spoken with
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the officer who wrote the arrest reports for the October 8 offenses to confirm that

the offense conduct on Moreno and Q Street occurred at 5:02 p.m. and that the

offense conduct at Blount and S Street occurred at 5:18 p.m. on the same day. The

officer also told Bondjuk that the same confidential informant was used in both

controlled purchases and that the confidential informant reconnected with a law

enforcement officer to hand over the evidence between the two controlled

purchases. Bondjuk also stated that Q Street was approximately a block and a half

away from S Street and that street dealers usually work in a concentrated area, but

that they do not stay in one particular spot because they try to assert territorial

control. With regard to the October 22 offense, Bondjuk testified that he did not

know whether the same confidential informant was used.

Following this evidence, Holland argued that the two October 8 offenses,

which occurred within two blocks of each other and sixteen minutes apart, were

one continuous act and should be counted as one conviction for purposes of the

ACCA. The district court overruled Holland’s objection, finding that the two

October 8 offenses occurred on different occasions within the meaning of the

ACCA.

The district court adopted the PSI’s guidelines calculations, giving Holland
The PSI recommended that, under U.S.S.G. § 4B1.4, Holland’s offense level should 2

increase to level 34 due to his armed career criminal status. After receiving a three-level reduction

for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, Holland’s total offense level was 31.

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an offense level of 31 and a criminal history category of VI, which resulted in an 2

advisory guidelines range of 188 to 235 months.

The district court then granted the government’s U.S.S.G. § 5K1.1 motion

for a substantial assistance departure and sentenced Holland to 88 months’

imprisonment. The district court stated that, in imposing the sentence, it had

considered the 18 U.S.C. § 3553(a) factors and also the fact that Holland “only

marginally” qualified as an armed career criminal, as follows:

I have taken into account the fact that while technically you do fall

within the Armed Career Criminal Act, certainly it’s only marginally

within it because of the technicalities we have covered.

Holland appeals his 88-month sentence.

II. DISCUSSION

On appeal, Holland argues that the district court considered impermissible

sources in determining whether his convictions occurred on different occasions for

purposes of the ACCA. Because Holland did not raise this argument in the district

court, we review only for plain error. See United States v. Rodriguez, 398 F.3d

1292, 1298 (11th Cir. 2005). Under plain error review, “[a]n appellate court may

not correct an error the defendant failed to raise in the district court unless there is:
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‘(1) error, (2) that is plain, and (3) that affects substantial rights.’” Id. at 1298

(quoting in part United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785

(2002)). If these three conditions are met, “an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation

marks omitted). “[T]here can be no plain error where there is no precedent from

the Supreme Court or this Court directly resolving [the issue].” United States v.

Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). Here, even assuming

arguendo that there was error, it was not plain.

In 1990, the Supreme Court held that 18 U.S.C. § 924(e) mandated a formal

categorical approach when determining whether a prior conviction was a violent

felony or a serious drug offense for purposes of the ACCA. See Taylor v. United

States, 495 U.S. 575, 600-02, 110 S. Ct. 2143, 2159 (1990). Under this categorical

approach, a sentencing court was permitted to look only to the statutory elements 

of the prior offenses, the charging documents and the jury instructions, but could

not look to the particular facts underlying the convictions. Id. at 602, 110 S. Ct. at

2160.

In 2000, this Court rejected the argument that the categorical approach in

Taylor prohibited a sentencing court from considering police reports and arrest
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records when determining whether a defendant’s prior convictions were committed

on different occasions under the ACCA. See United States v. Richardson, 230

F.3d 1297, 1299-1300 (11th Cir. 2000). This Court concluded that whether the

convictions were committed on different occasions was “a question unsuited to a

categorical approach that relies on an examination of the criminal statute.” Id. at

1300. Although we “recogniz[ed] the risk of converting a sentencing procedure

into a mini-trial of the facts,” we also noted that the defendant did not contest the

accuracy of the police reports and the reports revealed facts ordinarily relayed in

police reports, such as the time and date of the offense conduct. Id.

In 2005, the Supreme Court elaborated upon the categorical approach first

recognized in Taylor and concluded that the district court could not look at police

records and reports in determining whether the convictions were violent felonies or

serious drug offenses. See Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct.

1254, 1257 (2005). Importantly, Shepard did not address a district court’s inquiry

under the ACCA as to whether the prior convictions were committed on different

occasions. Furthermore, since Shepard was decided, this Court has not addressed

whether Shepard’s ban on the use of police records and reports applies to §

924(e)’s “different occasions” inquiry and thus, as Holland suggests, “nullifies”

our decision in Richardson. Because neither the Supreme Court nor this Court has
We review de novo the legal determination that offenses were distinct under the ACCA. 3

United States v. Pope, 132 F.3d 684, 689 (11th Cir. 1998).

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directly resolved the question, any error in Holland’s case was not obvious or clear

under current law and thus was not plain.

Alternatively, Holland argues that, even if a court may consider arrest

reports and testimony about his two October 8, 1998 offenses, the district court

erred in concluding that his two offenses were distinct for purposes of the ACCA. 

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The ACCA does not require that the predicate offenses be separated “by some

substantial amount of time.” United States v. Pope, 132 F.3d 684, 691 (11th Cir.

1998). Rather, “so long as predicate crimes are successive rather than

simultaneous, they constitute separate criminal episodes . . . .” Id. at 692. More

specifically, “the ‘successful’ completion of one crime plus a subsequent conscious

decision to commit another crime makes that second crime distinct from the first . .

. .” Id. Thus the ACCA will apply “to criminals who commit three crimes in

temporal and physical proximity to one another if the perpetrator had a meaningful

opportunity to desist his activity before committing [another] offense.” Id. at 690

(concluding that two burglaries committed on the same evening in separate

buildings 200 yards apart were sufficiently distinct under the ACCA); see also

United States v. Spears, 443 F.3d 1358, 1360 (11th Cir. 2006) (concluding that two

robberies committed within two minutes and thirty feet of each other were
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sufficiently distinct under the ACCA).

Here, according to the PSI, which Holland did not dispute, the two

controlled drug buys on October 8 occurred at different times, separated by sixteen

minutes, and at different locations, separated by a few blocks. These temporal and

physical breaks gave Holland a “meaningful opportunity” to stop before

committing the second offense. Thus, Holland’s two October 8, 1998 drug

offenses were separate criminal episodes for purposes of the ACCA. Accordingly,

the district court did not err in sentencing Holland as an armed career criminal, and

we affirm Holland’s 88-month sentence.

AFFIRMED.