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United States v. Gallimore.

No. 22-6081. 6/28/2023. W.D.Okla. Judge Carson. Armed Career Criminal Act Sentencing Enhancement—Prior Convictions—Crimes Occurring on the Same Occasion—Pretext—Summary Judgment.

June 28, 2023

Gallimore pleaded guilty without a plea agreement to one count of being a felon in possession of a firearm under 18 USC § 922(g)(1). Because Gallimore had four prior convictions, the initial presentence investigation report (PSR) applied an Armed Career Criminal Act (ACCA) enhancement, which pushed his statutory sentencing range to 15 years to life. Gallimore objected to the PSR, arguing that three of his prior convictions occurred on a single occasion, so the sentencing enhancement did not apply. The probation officer responded with a PSR addendum that considered the temporal and locational proximity of Gallimore’s three convictions and the similarities between the offenses. At the sentencing hearing, the court determined that Gallimore’s three prior convictions constituted three separate occasions because they were for robberies that he committed at three separate locations over three consecutive days. The district court overruled Gallimore’s objection and sentenced him to 200 months’ imprisonment followed by five years of supervised release.

On appeal, Gallimore argued that he committed the three robberies on one occasion, so the ACCA sentencing enhancement did not apply. Under 18 USC § 924(e), a sentencing court must impose a sentence of not less than 15 years on a defendant found guilty of violating 18 USC § 922(g) who has three prior convictions for violent felonies that were committed on different occasions. Under 18 USC § 924(e), what constitutes an “occasion” requires a multi-factored inquiry. In Wooden v. United States, 142 S. Ct. 1063 (2022), the US Supreme Court interpreted “occasions” as multi-factored and requiring consideration of a range of circumstances such as the offenses’ time, location, character, and relationship. And courts have typically treated offenses as occurring on separate occasions if a person committed them a day or more apart, or within a significant distance. Here, Gallimore committed the robberies on different dates with different locations and victims. The time between each robbery and their different locations decisively differentiate occasions. Accordingly, the robberies occurred on three separate occasions. Further, contrary to Gallimore’s arguments, the ACCA applies to defendants regardless of age, and commonality among crimes is not dispositive of whether they were committed on one occasion. Therefore, the district court properly applied the ACCA sentencing enhancement.

Gallimore also contended that a jury must decide whether his prior convictions qualify as separate occasions under the ACCA. However, this issue is a matter for the sentencing court, not a fact required to be determined by a jury.

The sentence was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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