[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-14068

Non-Argument Calendar

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D.C. Docket No. 8:17-cr-00361-SCB-AEP-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

HARLEM SLAUGHTER TURNER, III, 

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(November 5, 2019)

Before WILSON, WILLIAM PRYOR, and BRANCH, Circuit Judges.

PER CURIAM: 

Harlem Slaughter Turner, III, appeals his 188-month sentence for possession 

of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. 

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§§ 922(g)(1) and 924(e). On appeal, he argues that the district court erred when it 

qualified him as an armed career criminal under § 924(e)(1), because he lacked the 

requisite three qualifying convictions. He also argues—despite his sentenceappeal waiver—that the district court erred when it applied a four-level 

enhancement under the Sentencing Guidelines, U.S.S.G. § 2K2.1(b)(6)(B), and 

when it engaged in impermissible “double counting” to enhance his sentence. 

After careful review of the parties’ briefs and the record, we affirm.

I.

Under the Armed Career Criminal Act (ACCA), a convicted felon found 

guilty of possession of a firearm under § 922(g)(1) is subject to a mandatory 

minimum sentence of 15 years’ imprisonment if he has at least three prior 

convictions for violent felonies committed on different occasions. § 924(e)(1). 

During sentencing in this case, the district court concluded that Turner qualified as 

an armed career criminal under § 924(e)(1) because he had at least three qualifying 

convictions. Turner seeks to undermine the district court’s conclusion by disputing 

the qualifications of his prior convictions listed in the Presentence Investigation 

Report (PSR). Ultimately, he is unsuccessful; the district court did not err.

We review de novo both whether a conviction constitutes an ACCA violent 

felony, United States v. Braun, 801 F.3d 1301, 1303 (11th Cir. 2015), and whether 

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prior offenses meet the ACCA’s different-occasions requirement, United States v. 

Longoria, 874 F.3d 1278, 1281 (11th Cir. 2017) (per curiam).

A violent felony includes “any crime punishable by imprisonment for a term 

exceeding one year . . . that . . . has as an element the use, attempted use, or 

threatened use of physical force against the person of another.” § 924(e)(2)(B)(i). 

A conviction may qualify as an ACCA violent felony regardless of whether the 

government identified the conviction in the indictment. See United States v. 

Deshazior, 882 F.3d 1352, 1358 (11th Cir. 2018), cert. denied, 139 S. Ct. 1255 

(2019). Further, a defendant cannot attack the validity of a prior state conviction 

that otherwise qualifies as a violent felony, unless the attack is based on a violation 

of his right to counsel. Custis v. United States, 511 U.S. 485, 487 (1994).

We have the luxury of standing on prior panels’ shoulders as we decide

whether each of Turner’s prior convictions constitutes an ACCA violent felony. 

Based on our precedent,1 Florida armed robbery is categorically a violent felony 

under the ACCA’s elements clause. United States v. Fritts, 841 F.3d 937, 942–44

(11th Cir. 2016). So too is Florida attempted robbery. United States v. Joyner, 

882 F.3d 1369, 1378–79 (11th Cir. 2018), cert. denied, 139 S. Ct. 1256 (2019); see 

1 “Under the well-established prior panel precedent rule of this Circuit, the holding of the first 

panel to address an issue is the law of this Circuit, thereby binding all subsequent panels unless 

and until the first panel's holding is overruled by the Court sitting en banc or by the Supreme 

Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001); see also United States v. 

Lee, 886 F.3d 1161, 1163 & n.3 (11th Cir. 2018) (per curiam), petition for cert. filed, (U.S. July 

23, 2019) (No. 19-5331).

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also Lee, 886 F.3d at 1163 n.1 (stating that “Florida strong-arm robbery, armed 

robbery, and attempted robbery are all treated the same for purposes of analyzing 

the ACCA’s elements clause”). Turner’s PSR indisputably listed three armed 

robberies and one attempted armed robbery, surpassing the three violent felonies 

required for ACCA purposes.

But identifying at least three violent felonies is not enough. The defendant 

must also have committed the underlying crimes “on occasions different from one 

another.” § 924(e)(1). Thus, the government must identify at least three “separate 

and distinct criminal episode[s],” indicated by differences in time and place. 

United States v. Sneed, 600 F.3d 1326, 1329 (11th Cir. 2010) (internal quotation 

mark omitted). Successive crimes constitute separate criminal episodes under the 

ACCA, but simultaneous crimes do not. Longoria, 874 F.3d at 1281. 

Here, the district court properly determined that Turner qualified as an 

armed career criminal. According to the PSR, Turner had the following Florida 

convictions: (1) armed robbery, committed on May 2, 1995; (2) armed robbery, 

committed on May 4, 1995; (3) armed robbery, or armed kidnapping, committed 

on May 4, 1995; (4) aggravated battery with a deadly weapon, or attempted armed 

robbery, committed on May 11, 1995; and (5) aggravated battery with a deadly 

weapon, committed on June 11, 2010. We count at least three violent felonies:

Turner’s three armed robberies and one attempted armed robbery. See Fritts, 841 

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F.3d at 942–44 (armed robbery); Joyner, 882 F.3d at 1378–79 (attempted robbery). 

And at least three of those crimes occurred during three separate criminal episodes: 

May 2, 1995; May 4, 1995; and May 11, 1995. See Sneed, 600 F.3d at 1329. 

Therefore, we conclude that at least2 three convictions qualify Turner as an armed 

career criminal: (1) the May 2 armed robbery; (2) either of the two May 4 armed 

robberies; and (3) the May 11 attempted armed robbery.

But Turner attempts to poke several holes in his classification as an armed 

career criminal. First, he argues that we should not rely on his May 2 conviction 

for armed robbery because the government violated due process by effectively

failing to notify him that that conviction would support a sentence enhancement. 

This argument is meritless because it rests on the fallacious premise that the 

government must identify a conviction in the indictment. See Deshazior, 882 F.3d 

at 1358.

As for his May 11 attempted armed robbery, Turner acknowledges his guilty 

plea but argues that the Fifth, Sixth, and Eighth Amendments preclude our reliance 

on that conviction because he can show evidence that he was in custody during the 

2 Given our analysis, we need not address the parties’ arguments about (1) whether the May 4, 

1995 convictions happened on different occasions; (2) whether the May 4, 1995 armed

kidnapping qualifies as a violent felony; or (3) whether the June 11, 2010 aggravated battery 

with a deadly weapon qualifies as a violent felony.

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crime’s commission. But such an attack on that conviction is futile because Turner

does not allege a violation of his right to counsel. See Custis, 511 U.S. at 487.

Thus, the district court properly sentenced Turner as an armed career 

criminal under the ACCA.

II.

Turner also appeals his sentence because, he argues, the district court erred 

by applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) and by 

engaging in impermissible “double counting” to enhance his sentence. The 

government seeks dismissal of Turner’s § 2K2.1(b)(6)(B) and double-counting 

arguments because Turner knowingly and voluntarily waived his right to appeal his 

sentence on these bases. Turner replies that his challenges trigger one of the four

exceptions to the waiver because his sentence violates the Eighth Amendment.

3

 

We disagree; his challenges do not fit the exception and are thus barred by the 

waiver.

Turner’s attacks on his sentence masquerade as Eighth Amendment 

challenges, but not well. In his initial brief, Turner neither identifies nor discusses

the Eighth Amendment as a basis for appeal. Granted, in the “Summary of 

Argument” section, he makes a passing reference to how the district court’s 

3 Turner does not dispute that he made the waiver knowingly and voluntarily or that the waiver 

was valid.

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impermissible double counting led to “a constitutionally impermissible and 

excessive sentence.” But no more is said about that. And even after the 

government argued that his waiver barred his § 2K2.1(b)(6)(B) and doublecounting arguments, Turner replied with a major heading for those arguments that 

fails to reference the Eighth Amendment. At no point does he cite legal authority 

regarding the Eighth Amendment or analyze an Eighth Amendment issue. He 

assumes that superficially invoking the exception is enough. It is not. Cf. Williams 

v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005) (holding that a sentenceappeal waiver precluded a defendant from circumventing the waiver “simply by 

recasting a challenge to his sentence . . . [and] thus rendering the waiver 

meaningless”).

To entertain Turner’s attempted work-around of his waiver is to deprive “the 

government of the benefit that it has bargained for and obtained in the plea 

agreement containing the . . . waiver.” See United States v. Buchanan, 131 F.3d 

1005, 1008 (11th Cir. 1997) (per curiam). This we will not do. We will enforce 

the waiver without requiring the government to brief the merits of Turner’s 

§ 2K2.1(b)(6)(B) and double-counting arguments on appeal. See id.

Accordingly, we affirm the sentence.

AFFIRMED.

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