*District Judge of the Northern District of Texas, sitting by designation.

1Section 924(e) provides, in pertinent part: “In the case of a person who violates section

922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 01-51041

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.

CHERYL YVONNE STONE

Defendant-Appellee.

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Appeal from the United States District Court

for the Western District of Texas

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September 12, 2002

Before SMITH and BENAVIDES, Circuit Judges, and FITZWATER, District Judge.*

BENAVIDES, Circuit Judge:

Defendant Cheryl Yvonne Stone (“Stone”) was indicted by a single count superseding

indictment, charging a violation of 18 U.S.C. § 922(g) [Felon in Possession of a Firearm]

(“Section 922(g)”). It was further alleged that Stone qualified for a sentence enhancement

pursuant to the Armed Career Criminal Act [18 U.S.C. § 924(e)] (“Section 924(e)”).1 Stone was
of this title for a violent felony or a serious drug offense, or both, committed on occasions

different from one another, such person shall be fined not more than $25,000 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).”

2

convicted after a jury trial and sentenced to 71 months’ imprisonment. In sentencing Stone, the

district court refused to enhance Stone’s sentence pursuant to Section 924(e), and the United

States appeals. Because the grounds given for the denial are unsupported by law, we vacate and

remand for re-sentencing.

I.

Stone was arrested when a search of her home uncovered three firearms: a .22 caliber

rifle; a .30-.30 caliber rifle; and a 12 gauge shotgun. The Pre-Sentence Investigation Report (the

“PSI”) established that Stone had two prior burglary convictions and a conviction for aggravated

battery. The former convictions appear to be based on burglaries of two different buildings,

occurring a month apart.

As noted above, the district court declined to enhance Stone’s sentence pursuant to

Section 924(e). It reasoned that Apprendi v. New Jersey, 530 U.S. 466 (2000) barred the

enhancement because the jury was not asked to find that Stone had committed three previous

violent felonies or serious drug crimes. The district court also appeared to conclude that Stone’s

criminal history consisted of only two prior violent felonies for the purposes of Section 924(e)

because Stone’s two burglary convictions stemmed from a single arrest.

II.

The applicability of Apprendi to this case is a question of law that we review de novo. 
2

See United States v. Santiago, 268 F.3d 151, 154-57 (2d Cir. 2001); United States v.

Sterling, 283 F.3d 216, 219-220 (4th Cir. 2002); United States v. Skidmore, 254 F.3d 635, 642

(7th Cir. 2001); United States v. Abernathy, 277 F.3d 1048, 1049-1050 (8th Cir. 2002); United

States v. Summers, 268 F.3d 683, 688-89 & n.3 (9th Cir. 2001), cert. denied, 122 S.Ct. 1182

(2002); United States v. Dorris, 236 F.3d 582, 586-88 (10th Cir.), cert. denied, 532 U.S. 986

(2001); United States v. Thomas, 242 F.3d 1028, 1035 (11th Cir.), cert. denied, 533 U.S. 960

(2001).

3

See, e.g., United States v. Trennell, 290 F.3d 881, 889 (7th Cir. 2002). We have yet to address in

a published opinion, post-Apprendi, whether the Fifth and Sixth Amendments require that a

Section 924(e) enhancement be based on a jury finding. Cf. United States v. Doggett, 230 F.2d

160, 166 (5th Cir. 2000) (holding that the sentencing court did not err in using prior convictions

to enhance a sentence pursuant to Section 841(b)(1)(C), even though the prior convictions were

not submitted to the jury). We now join every circuit addressing the issue in concluding that they

do not.2 

In United States v. Affleck, 861 F.2d 97 (5th Cir. 1988), we held that “because [Section]

924(e)(1) does not create a separate offense but is merely a sentence enhancement provision,”

neither the statute nor the Constitution requires a jury finding on the existence of the three

previous felony convictions required for the enhancement. Id. at 98-9. Absent a clear contrary

statement from the Supreme Court or en banc reconsideration of the issue, we are bound by

Affleck. Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411 n.3 (5th Cir. 1998); Valero

Refining, Inc. v. M/T Lauberhorn, 813 F.2d 60, 62 (5th Cir. 1987). Neither has occurred.

 In Apprendi the Court did hold that “any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” Apprendi, 530 U.S. at 490. In so holding, however, the Court explicitly

excepted enhancements like that provided by Section 924(e), which are based upon prior
3This exception is consistent with the Court’s holding in Almendarez-Torres v. United

States, 523 U.S. 224 (1998), in which the Court held that Congress could treat recidivism as a

sentencing factor rather than an element of the offense when codifying the penalties for a violation

of 8 U.S.C. § 1326(a). The Court in Apprendi expressly declined to overrule Almendarez-Torres. 

Apprendi, 530 U.S. at 489-490.

4Stone argues that we need not address the applicability of Section 924(e) because her PSI

is not part of the appellate record. Even a cursory review of the docket demonstrates that Stone

is mistaken. 

5

It is unclear, but it appears from the transcript of the sentencing hearing that the district

court may have conflated Section 924(e)’s separate and distinct transactions requirement with

U.S.S.G. § 4A1.2’s “relatedness” inquiry. We have previously held, however, that when

determining if a defendant has three felonies for the purposes of Section 924(e), whether felonies

are “related” for the purposes of U.S.S.G. § 4A1.2 is irrelevant. United States v. MedinaGutierrez, 980 F.2d 980, 983 (5th Cir. 1992).

4

convictions. Id.3 Accordingly, Stone’s Apprendi challenge fails.

III.

Whether Stone’s two prior burglary convictions should be treated as a single “violent

felony” for the purposes of Section 924(e) merely because they stemmed from a single arrest is

also a question of law we review de novo.

4

 As noted above, Section 924(e) provides for a

sentencing enhancement applicable to offenders who have committed three felonies “on occasions

different from one another.” We recognize that the fact that multiple convictions stemmed from a

single arrest could possibly be relevant to the determination whether the underlying felonies were

“committed on occasions different from one another.” That fact is not, however, dispositive.5

See United States v. Herbert, 860 F2d 620, 622 (5th Cir. 1988) (holding that “multiple

convictions arising from multiple criminal transactions should be treated as separate convictions,

regardless of the number of judicial proceedings involved in the conviction.”); United States v.
6We do not address the question whether the burglary convictions at issue arose from

distinct criminal transactions as this issue was not addressed by the district court. Cf. Herbert,

860 F.2d at 622 n.1 (“The crimes for which the appellant was convicted occurred on separate

days at separate locations and with two intervening days during which the appellant, presumably,

was not engaged in criminal activity. Under these circumstances, we have no difficulty in holding

that these instances were separate criminal transactions. We need not and do not address the issue

of whether multiple convictions for crimes committed over a period of days or hours as part of a

criminal spree constitute single or multiple criminal transactions.”).

5

Ressler, 54 F.3d 257, 259-260 (5th Cir. 1995) (focusing on whether the crimes were committed

simultaneously or sequentially); see also United States v. Riddle, 47 F.3d 460, 462 (1st Cir.1995)

(“Congress, thinking primarily about the protection of the public, adopted a definition of armed

career criminal that ignores the duration of the career or the youthfulness of the adult offender or

the lack of lengthy intervals or arrests between the crimes.”); United States v. Letterlough, 65

F.3d 332, 337 (4th Cir. 1995).6

CONCLUSION

In light of the foregoing discussion, the sentence of the district court is hereby VACATED

and this matter is REMANDED for re-sentencing.