UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4385

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARION QUINTON BREWSTER,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:16-cr-00220-MOC-DSC-1)

Submitted: February 16, 2018 Decided: March 1, 2018

Before THACKER and HARRIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Anthony Martinez, Federal Public Defender, Joshua B. Carpenter, Appellate Chief, FEDERAL DEFENDERS OF WESTERN DISTRICT OF NORTH CAROLINA, Asheville, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Marion Quinton Brewster pled guilty to possession of a firearm by a convicted

felon, in violation of

(g) (2012). The district court imposed a sentencing

enhancement under the Armed Career Criminal Act (ACCA),

(e) (2012),

after concluding, over Brewster’s objection, that Brewster had three prior convictions for

a violent felony that were “committed on occasions different from one another.”

(e)(1). The court sentenced Brewster to the ACCA’s statutory mandatory

minimum of 15 years’ imprisonment. Brewster appeals, challenging the district court’s

conclusion that two of his ACCA predicate offenses were committed on different

occasions. For the reasons that follow, we affirm.

We review de novo the district court’s determination that Brewster committed his

predicate offenses on different occasions, but “review for clear error the district court’s

factual findings made incident to this ultimate ruling.” United States v. Linney,

(4th Cir. 2016). We will find clear error only if “on the entire evidence, [we

are] left with the definite and firm conviction that a mistake has been committed.”

United States v. Span,

(4th Cir. 2015) (internal quotation marks

omitted). Such error occurs when the court’s “factual determinations are not supported

by substantial evidence” or “are against the clear weight of the evidence considered as a

whole.”

(internal quotation marks omitted). The Government bears the burden to

establish by a preponderance of the evidence that Brewster’s prior offenses were

committed on separate occasions. United States v. Archie,

(4th Cir.

2014).

2 For ACCA purposes, “offenses occur on occasions different from one another

when each offense arose out of a separate and distinct criminal episode.” United States v.

Tucker,

(4th Cir. 2010) (internal quotation marks omitted). “[E]ach

predicate offense must have a beginning and an end, such that they each constitute an

occurrence unto themselves.” Linney,

(internal quotation marks

omitted). However, offenses that were “committed on the same day, or even in the span

of a few hours may nevertheless be considered separate and distinct criminal episodes if

they do not arise from a continuous course of criminal conduct.” Span,

-

28 (internal quotation marks omitted).

To determine whether offenses occurred on different occasions, we consider:

(1) whether the offenses arose in different geographic locations; (2) whether the nature of each offense was substantively different; (3) whether each offense involved different victims; (4) whether each offense involved different criminal objectives; and (5) whether the defendant had the opportunity after committing the first-in-time offense to make a conscious and knowing decision to engage in the next-in-time offense.

United States v. Carr,

(4th Cir. 2010); see United States v.

Letterlough,

(4th Cir. 1995). “We can consider these factors

together or independently, and if any one of the factors has a strong presence, it can

dispositively segregate an extended criminal enterprise into a series of separate and

distinct episodes.” United States v. Boykin,

(4th Cir. 2012) (internal

quotation marks omitted).

Courts may rely only on sources approved under Shepard v. United States,

(2005)—such as the indictment and judgment of conviction—to determine

3 whether prior offenses were committed on separate occasions. Boykin,

-

71. On several occasions, we have “declined to sanction application of the ACCA

enhancement where the Government has failed to definitively establish any of the

Letterlough factors indicating that the predicate offenses were committed on different

occasions.” Span,

(alteration and internal quotation marks omitted).

Brewster argues that his prior armed robbery and carjacking convictions should be

treated as occurring on a single occasion. The parties agree that these offenses occurred

on the same day but were prosecuted in different South Carolina counties and involved

different named victims. Observing that the Shepard-approved sources in the record do

not identify the time or location that the offenses took place or indicate their timing in

relation to one another, Brewster contends that the approved sources fail to definitively

establish that the offenses occurred on separate occasions.

Our review of the record supports the district court’s contrary conclusion. The

fact that the offenses were prosecuted in different counties provides substantial evidence

to support the district court’s finding that the offenses occurred in separate geographical

locations. Further, the facts that the offenses involved different locations and victims

provides substantial evidence to support a finding that the gap between these locations,

even if limited, provided a sufficient opportunity after the first-in-time offense to make a

conscious decision to engage in the second-in-time offense.

Brewster observes that the offenses took place in adjacent counties traversing the

populous Columbia, South Carolina, metropolitan area. Brewster relies heavily on a

hypothetical circumstance in which the same robber could commit an armed robbery and

4 carjacking at neighboring businesses on opposite sides of the county line. Even accepting

Brewster’s hypothetical, however, the two offenses would constitute separate occurrences

under our prior authority. As we have previously recognized, even a limited temporal or

geographical gap between offenses is generally sufficient to render them separate

occurrences. See Linney,

(burglaries of houses 30 feet apart); Carr,

(breaking or entering 13 storage units at single address). Although Brewster

attempts to distinguish Carr based on the absence of victims at the time of its underlying

breaking or entering offenses, we find his argument unpersuasive. Further, any

conceivable scenario in which Brewster could have committed his robbery and carjacking

offenses against different victims and in different counties simultaneously is simply too

implausible to render the district court’s fact-finding clearly erroneous. Accord Linney,

(holding that district court did not clearly err in relying on indictments

and judgments, which made no reference to codefendants, to find that defendant

committed prior offenses alone, as Government is not required to “prov[e] a negative”).

Brewster analogizes to Span, Tucker, and Boykin to argue that the absence of

additional facts in Shepard-approved documents prevented the Government from

definitively establishing the Letterlough factors. However, we find these authorities

readily distinguishable. In Boykin, the only relevant information that could be

ascertained from Shepard-approved sources was the shared date of the defendant’s

predicate felonies, which—unlike the facts contained in Brewster’s approved sources—is

wholly insufficient to inform the Letterlough analysis.

. In Tucker and

Span, we were unable to determine whether two offenses occurred simultaneously or

5 sequentially because the defendant operated with an accomplice, and thus could have

been convicted as a principal for two offenses committed at the same time. Span,

; Tucker,

. Brewster has not argued, and the record

contains no basis to conclude, that Brewster acted with an accomplice in committing his

predicate armed robbery and carjacking offenses. The out-of-circuit authority Brewster

cites is similarly distinguishable on this basis.

Ultimately, we conclude that the district court did not clearly err in determining,

based on Brewster’s convictions in separate counties for offenses involving separate

victims, that his prior offenses occurred in different geographical locations. And contrary

to Brewster’s assertion, under Carr and Linney, those facts also support a finding that he

had an opportunity to make a conscious and knowing decision to engage in the second-in-

time offense, regardless of which offense occurred first in time. In view of the totality of

the Letterlough factors, we find no error in the district court’s conclusion that the

offenses occurred on separate occasions.

Accordingly, we affirm Brewster’s criminal judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

AFFIRMED

6