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discussing Wooden, 595 U.S. 360, 142 S.Ct. 1063
Summary of this case from United States v. SchorovskyOpinion
No. 22-50283 Summary Calendar
05-04-2023
UNITED STATES of America, Plaintiff—Appellee, v. Samuel VALENCIA, Defendant—Appellant.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, Charles E. Fowler, Jr., U.S. Attorney's Office, Western District of Texas, Austin, TX, for Plaintiff—Appellee. Judy Fulmer Madewell, Kristin L. Davidson, Assistant Federal Public Defenders, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant—Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC o. 7:21-CR-299-1, Walter David Counts, III, U.S. District Judge Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, Charles E. Fowler, Jr., U.S. Attorney's Office, Western District of Texas, Austin, TX, for Plaintiff—Appellee. Judy Fulmer Madewell, Kristin L. Davidson, Assistant Federal Public Defenders, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant—Appellant. Before King, Higginson, and Willett, Circuit Judges. Per Curiam:
Samuel Valencia pleaded guilty to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(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." 18 U.S.C. § 924(e)(1).
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, 465 F.3d 250, 254 (5th Cir. 2006).
As both parties acknowledge, our case law forecloses this argument. See United States v. Davis, 487 F.3d 282, 287-88 (5th Cir. 2007); White, 465 F.3d at 254; see also United States v. Eddins, 451 F. App'x 395, 397 (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. — U.S. —, 142 S. Ct. 1063, 212 L.Ed.2d 187 (2022). But in Wooden, the Court explicitly declined to address the issue that Valencia raises. Id. at 1068 n.3. Wooden is therefore "not directly on point" and thus does not "alter the binding nature" of Davis and White. United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014).
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, 740 F.3d 169, 171 (5th Cir. 2013), and, here, our rule of orderliness requires us to look past the concession.
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.
Valencia's sentence is AFFIRMED.