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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. CASE NOS. 3:11-cr-10-LAC-CJK 

 3:14-cv-314-LAC-CJK 

IRA JEROME MILLENDER, JR., 

Defendant. 

__________________________________/ 

ORDER

 The matter is before the Court on Defendant Ira Jerome Millender, Jr.’s 

objection to the magistrate judge’s Report and Recommendation, which advises the 

Court to deny Mr. Millender’s Amended Motion to Correct Sentencing under 28 

U.S.C. § 2255. I have made a de novo determination of objections filed and the 

responses thereto. Having considered the Report and Recommendation and the 

parties’ timely responses, I have determined that the Report and Recommendation 

should be adopted as the opinion of the Court for the following reasons. 

I. Background

On February 28, 2011, Mr. Millender pled guilty to violating 18 U.S.C. 

§ 922(g), which criminalizes the possession of a firearm by a convicted felon. See 

ECF No. 19. A Section 922(g) violation ordinarily imposes a sentence of no more 
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than ten years, see 28 U.S.C. § 924(a)(2). However, under the Armed Career 

Criminal Act (the “ACCA”), 18 U.S.C. § 924, a perpetrator with three predicate 

offenses is subject to a fifteen-year sentence as a minimum. The ACCA defines 

predicate offenses to include serious drug offenses and three types of violent 

felonies: (1) felonies that have “the use, attempted use, or threatened use of physical 

force against the person of another” as an element (the “Elements Clause”); (2) 

burglary, arson, extortion, or crimes involving the use of explosions (the 

“Enumerated Clause”); and (3) felonies that “otherwise involve[] conduct that 

presents a serious potential risk of physical injury to another” (the “Residual 

Clause”). 28 U.S.C. § 924(e)(2)(B)(i) and (ii). 

Mr. Millender had four relevant convictions at the time of his sentencing: one 

conviction for discharging a firearm from a vehicle, one conviction for conspiracy 

to possess with intent to sell crack cocaine, and two convictions for aggravated 

battery. See ECF No. 25 at 10-13. At the sentencing hearing, Mr. Millender 

contended that his two convictions for aggravated battery constitute one offense 

under the ACCA, reasoning that the ACCA counts multiple convictions as a single 

offense where they occurred simultaneously and not in succession, see 28 U.S.C. 

§ 924(e)(1) (requiring that three previous convictions be “committed on occasions 

different from one another”), and that his two aggravated batteries occurred around 
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the same place and time. With respect to his aggravated battery convictions, Mr. 

Millender’s Presentencing Report (“PSR”) provides that: 

On November 11, 1992, in Pensacola, Florida, the defendant was 

involved in an argument with Alonzo Knight and Mike Carstarphen 

concerning some females and the defendant’s girlfriend. During this 

argument, the defendant reached into his pocket, removed a handgun, 

and shot two rounds at the victims. One of the bullets struck Knight in 

the left thigh, and the other bullet struck Carstarphen in the left hand. 

ECF No. 25 at 10 (Paragraph 42 of the PSR).1

 The Court concluded that Mr. 

Millender’s two aggravated batteries constitute two convictions under the ACCA, 

but noted that it did not need to reach this decision. The sentencing enhancement 

applied, regardless, due to Mr. Millender’s prior convictions for discharging a 

firearm from a vehicle and conspiracy to possess with intent to sell crack cocaine. 

See ECF No. 39 at 17-18. Mr. Milender appealed this ruling to the Eleventh Circuit, 

which declined to reach this issue on the same basis. See United States v. Millender, 

458 F. App’x 791, 792 (11th Cir. 2012) (explaining that Mr. Millender would have 

had at least three qualifying predicate offenses “even if the district court had not 

 1

 Mr. Millender did not object to Paragraph 42 of the PSR, see ECF No. 24 at 1-3, and, in 

fact, cites to this paragraph in his Amended Motion to Vacate, see ECF No. 91 at 5 (“The facts in 

the PSR indicate that during an argument Mr. Millender shot a handgun twice and two people were 

struck by bullets (PSR ¶ 42).”). The Court may consider this paragraph as a result. See Rozier v. 

United States, 701 F.3d 681, 686 (11th Cir. 2012) (“[A] district court can rely on the facts set forth 

in the PSI if they are undisputed and thereby deemed admitted.”) (citing United States v. Bennett, 

472 F.3d 825, 832-34 (11th Cir. 2006); United States v. Beckles, 565 F.3d 832, 843 (11th Cir. 

2009)); compare with United States v. Braun, 801 F.3d 1301, 1306 (11th Cir. 2015) (finding that 

the district court improperly relied on the facts of the PSI where the defendant “properly objected” 

to its use). 
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committed the purported counting error,” so “the alleged error” had no impact on 

the applicability of the ACCA sentencing enhancement). 

On June 26, 2015, the Supreme Court found the ACCA’s Residual Clause to 

be void for vagueness. See Johnson v. United States, 135 S.Ct. 2551, 2562-63 

(2015). This prompted Mr. Millender to, on August 24, 2014, file a pro se motion 

to vacate under 28 U.S.C. § 2255, which was superseded by his Amended Motion to 

Correct Sentence under 28 U.S.C. § 2255 (the “Amended Motion”), ECF No. 89. In 

his Amended Motion, Mr. Millender argues that, under Johnson, his conviction for 

discharging a firearm from a vehicle is no longer a predicate offense (the “Johnson 

Challenge”) and reiterates that his two convictions for aggravated battery should 

count as a single predicate offense. This would mean that he committed two offenses 

under the ACCA and that the sentencing enhancement did not apply. 

The Government concedes that Mr. Millender’s conviction for discharging a 

firearm from a vehicle is no longer a predicate offense under the ACCA and that his 

challenge on this basis is timely. It, instead, argues that the Court properly construed 

the two aggravated batteries as two offenses in the initial sentencing proceedings 

and Mr. Millender failed to timely argue otherwise. On May 19, 2017, the magistrate 

judge concluded that, “because one of the convictions used to enhance [Mr. 

Millender’s] sentence is now invalid under Johnson, the court must determine 

whether the record shows the requisite number of predicate offenses remaining to 
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qualify for a sentencing enhancement under the ACCA,” making the Government’s 

timeliness argument moot. The magistrate judge nevertheless advised that the 

ACCA enhancement should be upheld, deferring to the Court’s conclusion, in dicta, 

that the aggravated battery convictions constituted separate offenses. He further 

advised that the Court should not issue a certificate of appealability, to which Mr. 

Millender also objects. 

II. Discussion

The Court overrules Mr. Millender’s objections and adopts the magistrate’s 

report and recommendation as the opinion of the Court. Because Mr. Millender’s 

sentence now turns on his argument that the two aggravated felonies constitute one 

offense under the ACCA, the Court elaborates on its determination that they 

constitute separate offenses below. 

A defendant is subject to an ACCA sentencing enhancement if the defendant 

has been convicted of three drug-related or violent crimes on “occasions different 

from one another.” 18 U.S.C. § 922. The Eleventh Circuit, like other courts of 

appeals, has explained that a crime has occurred on different occasions where they 

“arose out of a separate and distinct ‘criminal episode.’” United States. v. Pope, 132 

F.3d 684, 689 (11th Cir. 1998) (quoting United States v. Greene, 810 F.2d 999, 1000 

(11th Cir. 1986)). Two criminal acts are a part of “distinct” episodes “if the 

perpetrator had a meaningful opportunity to desist his activity before committing the 
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second offense.” Id. at 690. Courts consider the time and place in which the acts are 

committed to determine whether criminal acts are part of distinct episodes. See id.

at 689-90. However, these differences are not dispositive where the perpetrator 

“made a conscious decision” to commit a second criminal act, that is, if “the 

predicate crimes are successive rather than simultaneous,” id. at 690 & 692. 

In United States v. Pope, a perpetrator broke into two offices, located 200 

yards apart, on the same night. The Eleventh Circuit found that the burglaries 

constituted two offenses under the ACCA because “Pope had completed his first 

burglary when he made the decision to commit the second burglary by breaking into 

another office,” id. at 692, notwithstanding that the two burglaries were committed 

in “one course of criminal conduct,” see United States v. Lee, 208 F.3d 1306, 1307 

(11th Cir. 2000) (“It is true that the crimes represent one course of criminal conduct, 

but so did the burglaries in Pope. The more important point is that as in Pope, Lee 

here successfully completed his first crime.”). The Eleventh Circuit reasoned that, 

because the ACCA’s purpose is to deter additional, deliberate criminal behavior, the 

sentencing enhancement applies where the perpetrator completed the first criminal 

act before starting the second act and not where, for instance, a perpetrator 

simultaneously robs six people by “sticking up” a restaurant. See Pope, 132 F.3d at 

691-692. 
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Consistently, in United States v. McCloud, 818 F.3d 591, 597-98 (11th Cir. 

2016), the Eleventh Circuit found that a perpetrator who robbed three different 

victims with the help of two co-defendants may not have committed separate 

offenses under the ACCA. The Eleventh Circuit reasoned that it was unclear 

whether the robberies occurred consecutively or not: 

It is possible that McCloud and both co-defendants committed the first 

robbery; McCloud and one co-defendant committed the second 

robbery; and then McCloud and both co-defendants committed the third 

robbery. If true, this could reflect three separate offenses. However, it 

is equally plausible that McCloud and his two co-defendants committed 

the first two offenses together, simultaneously, and then McCloud and 

only one co-defendant committed the third offense. This would indicate 

only two separate offenses. Moreover, it is also equally plausible that 

McCloud committed all three robberies simultaneously, with varying 

amounts of participation from his colleagues. This would indicate only 

one criminal episode. 

McCloud, 818 F.3d at 597-98 (emphasis in original); compare with United States v. 

Spears, 443 F.3d 1358, 1360-61 (11th Cir. 2006) (finding two robberies, committed 

within three minutes and roughly thirty feet of one another, were separate offenses 

because the perpetrator “could have ceased his criminal activity after the completion 

of the first robbery”). After all, as the Eleventh Circuit noted in Pope, a perpetrator 

who robs multiple people in one “stick up” has not committed successive criminal 

acts. See Pope, 132 F.3d at 691-692. 

 Mr. Millender argues that McCloud requires the Court to find that his two 

aggravated batteries constitute one offense. He reasons that, like McCloud, the PSR 
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indicates that the two aggravated batteries were committed at around the same time 

and place. The Court disagrees. As explained, differences in the time and location 

of two offenses are useful to the extent they help determine whether the first act was 

completed before the second act was initiated, but are not dispositive. See Pope, 132 

F.3d at 690 (explaining that it two offenses are not considered one simply because 

they were “temporal[ly] proxim[at]e” and that “[d]istinctions in time and place are 

usually sufficient to separate criminal episodes from one another even when the gaps 

are small”).2

 Unlike in McCloud, where it was impossible to determine whether the 

robberies were committed successively, the two aggravated batteries were 

necessarily committed one after the other. The PSR explains that, during an 

argument with the two victims, Mr. Millender shot two rounds and that one bullet 

struck the first victim in the left thigh and the other bullet struck the second victim 

in the left hand. The only reasonable inference that the Court can reach is that Mr. 

Millender shot one victim and, rather than stop at that point, decided to shoot 

another. Because he successfully shot the first victim before shooting the second, 

the aggravated battery convictions separate offenses under the ACCA. See Spears, 

443 F.3d at 1360-61 (finding two robberies, committed within three minutes and 

 2 See also United States v. Cherry, 641 F. App’x 829, 832 (10th Cir. 2016), cert denied, 

137 S.Ct. 89 (2016) (“Criminal acts – even those that are similar and occur closely in time – may 

constitute separate, predicate offenses when the defendant could have chosen to stop his illegal 

conduct but continued nonetheless.”). 
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about thirty feet of one another, were separate offenses because the perpetrator 

“could have ceased his criminal activity after the completion of the first robbery”); 

Pope, 132 F.3d at 692 (“Because Pope had committed his first burglary when he 

made the decision to commit the second burglary by breaking into another office 

200 yards away, the two crimes were committed on ‘occasions different from one 

another.’”).3

Finally, the magistrate judge concluded that a certificate of appeal should not 

be issued, reasoning that a certificate of appealability may issue “only if the applicant 

has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 

§ 2253(c)(2), and that Mr. Millender had not made such a showing. Mr. Millender

objects, arguing that the Eleventh Circuit has yet to determine whether two criminal 

acts constitute one offense under the ACCA under similar facts. However, for a 

certificate of appealability to issue, it is not enough for Mr. Millender to note that 

the Eleventh Circuit has yet to decide a similar case. He must make a “substantial 

3 See also United States v. Letterlough, 63 F.3d 332, 337 (4th Cir. 1995) (“If we went into 

a drug store to purchase aspirin, the transaction would be complete once we left the store with the 

pills – even though the drug store was still open for business. Similarly, each of Letterlough’s 

drug sales was a complete and final transaction, and therefore, an independent offense.”); United 

States v. Wilson, 27 F.3d at 1126, 1132 (6th Cir. 1994) (“Defendant could have halted his criminal 

rampage at any time. Yet, he chose to continue selecting different victims in different places. 

There seems to be no real reason for distinguishing between the events happening in separate 

rooms on separate floors of the same house versus separate, but nearby, structures as were the facts 

in Brady.”); United States v. Hamell, 3 F.3d 1187, 1191 (8th Cir. 1993) (“Although Hopkins 

committed the two assaults within minutes of each other, we conclude the assaults were separate 

and distinct criminal episodes.”). 
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showing” that reasonable jurists could disagree as to an issue implicating “the denial 

of a constitutional right.” He has failed to make this showing, notwithstanding his 

conclusory assertion that “this issue is clearly debatable among jurists of reason.” 

ECF No. 105 at 5-6. His objection as to a certificate of appealability is overruled as 

a result. 

III. Conclusion

DONE AND ORDERED this ___ day of February 2018. 

LACEY A. COLLIER 

SENIOR UNITED STATES DISTRICT JUDGE 

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