Case: 22-50283     Document: 00516738724       Page: 1    Date Filed: 05/04/2023




           United States Court of Appeals
                for the Fifth Circuit
                               ____________
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                No. 22-50283
                              Summary Calendar                            FILED
                              ____________                             May 4, 2023
                                                                     Lyle W. Cayce
   United States of America,                                              Clerk

                                                          Plaintiff—Appellee,

                                     versus

   Samuel Valencia,

                                           Defendant—Appellant.
                  ______________________________

                  Appeal from the United States District Court
                       for the Western District of Texas
                           USDC No. 7:21-CR-299-1
                  ______________________________

   Before King, Higginson, and Willett, Circuit Judges.
   Per Curiam:
         Samuel Valencia pleaded guilty to possession of a firearm by a felon,
   in violation of 

(g)(1), and he was sentenced to 235 months’
   imprisonment. His sentence reflected the district court’s imposition of a
   sentencing enhancement under the Armed Career Criminal Act (“ACCA”),
   which is triggered when a § 922(g) offender has three prior convictions for
   “violent felon[ies]” or “serious drug offense[s]” that were “committed on
   occasions different from one another.” 

(e)(1).
Case: 22-50283        Document: 00516738724             Page: 2      Date Filed: 05/04/2023




                                         No. 22-50283


           Valencia now appeals his sentence, arguing that the ACCA
   enhancement violated his constitutional rights because the facts establishing
   that he committed his previous violent felonies on different occasions were
   not charged in the indictment and either admitted by him or proven to a jury
   beyond a reasonable doubt. Our review is de novo. United States v. White, 

 (5th Cir. 2006).
           As both parties acknowledge, our case law forecloses this argument.
   See United States v. Davis, 

 (5th Cir. 2007); White, 

; see also United States v. Eddins, 

 (5th Cir.
   2011) (rejecting, as foreclosed by White, the proposition that ACCA’s
   different-occasions requirement must be alleged in the indictment and either
   proven beyond a reasonable doubt or admitted by the defendant). This
   precedent notwithstanding, the parties argue that the Supreme Court’s
   recent decision in Wooden v. United States instructs that the ACCA
   enhancement here was a constitutional error. 1 

 (2022). But
   in Wooden, the Court explicitly declined to address the issue that Valencia
   raises. 

 at 1068 n.3. 2 Wooden is therefore “not directly on point” and thus
   does not “alter the binding nature” of Davis and White. United States v.
   Traxler, 

 (5th Cir. 2014).
           Valencia’s sentence is AFFIRMED.

           _____________________
           1
             The Government agrees with Valencia’s contention that ACCA’s different-
   occasions requirement must be charged in the indictment and either admitted by the
   defendant or found by a jury beyond reasonable doubt. But we are not bound by the
   Government’s concessions, see United States v. Castaneda, 

 (5th Cir.
   2013), and, here, our rule of orderliness requires us to look past the concession.
           2
              The Court explained that two amici had briefed “another question arising from
   ACCA’s occasions clause: whether the Sixth Amendment requires that a jury, rather than
   a judge, resolve whether prior crimes occurred on a single occasion.” 142 S. Ct. at 1068
   n.3. The Court did “not address that issue because [the petitioner] did not raise it.” Id.




                                                   2