United States of America v. Tyree Pollard

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 22, 2008
Decided June 23, 2008
Before
KENNETH F. RIPPLE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 07‐2906
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
TYREE POLLARD,
Defendant‐Appellant.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 07‐CR‐009‐001
J.P. Stadtmueller,
Judge.
O R D E R
Tyree Pollard, a convicted felon, was sentenced to 15 years’ imprisonment under the
Armed Career Criminal Act (ACCA) for possessing a weapon. On appeal, Pollard argues
that the district court should not have applied the ACCA in his case. But because we have
previously rejected the type of arguments Pollard is pressing and because he makes them
here only to preserve his right to seek review in the Supreme Court, we affirm his sentence.
Kenosha County police officers found ten baggies of marijuana, drug paraphernalia,
ammunition, and a gun in Pollard’s apartment. Pollard admitted that he owned the gun
and the marijuana, and the police took him into custody. Because Pollard had two prior
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐2906 Page 2
state‐court convictions for delivering cocaine and one prior conviction for possessing and
intending to distribute cocaine, the government charged him with unlawfully possessing a
firearm despite his felon status in addition to possession of marijuana with intent to
distribute.
Pollard pleaded guilty to the firearm offense in exchange for the government’s
promise to drop the drug charge. As part of the plea agreement, the government warned
Pollard that his previous drug convictions would likely subject him to enhanced sentencing
penalties under the ACCA and agreed that Pollard could reserve the right to challenge the
enhancement. At sentencing, Pollard did object to the ACCA’s application, arguing that
because his prior convictions all resulted from a single prosecution, those convictions did
not comprise three separate crimes occurring on different occasions as required by the
ACCA. Pollard also argued that the ACCA’s sentencing enhancement, which increased his
sentence beyond the statutory maximum, violated his Fifth and Sixth Amendment rights
because the judge, not a jury, decided the facts relating to his criminal history and because
the judge did so using a standard of the preponderance of the evidence instead of beyond a
reasonable doubt. The district court rejected both arguments, however, and sentenced
Pollard to 15 years’ imprisonment, the minimum required under the ACCA.
On appeal, Pollard again challenges his sentence enhancement under the ACCA.
The ACCA establishes a minimum 15‐year sentence for felons caught with guns who have
at least three prior convictions for violent felonies or serious drug offenses. See 18 U.S.C.
§ 924(e)(1). We review de novo the district court’s application of the ACCA to Pollard’s
sentence. See United States v. Cardenas, 217 F.3d 491, 492 (7th Cir. 2000). We have squarely
rejected both of Pollard’s challenges before, however, and Pollard acknowledges that he
makes those challenges only to preserve them for review in the Supreme Court.
Pollard first renews his objection to the district court’s conclusion that his three state
convictions warranted a sentencing enhancement under the ACCA. Pollard correctly
observes that the ACCA applies only when the defendant has committed three prior crimes
“on occasions different from one another.” 18 U.S.C. § 924(e)(1). He argues that his
previous drug convictions should not count for purposes of the ACCA because they all
arose from a single prosecution and therefore did not occur on separate occasions. But well‐
settled circuit law compels the opposite conclusion.
We have joined most of our sister circuits in holding that prior offenses committed in
rapid succession count as individual offenses under the ACCA if each offense arose from a
“separate and distinct criminal episode.” See United States v. Hudspeth, 42 F.3d 1015, 1019
(7th Cir. 1994) (en banc) (collecting cases). Pollard contends that the ACCA was not meant
to encompass multiple offenses prosecuted and sentenced together, and he invites this court

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No. 07‐2906 Page 3
to revisit the Hudspeth standard. But whether predicate offenses under the ACCA were
prosecuted at the same time is irrelevant. What matters is whether the underlying
offenses occurred simultaneously or sequentially, thus permitting the defendant to abandon
the criminal enterprise before moving on to the next crime. See Hudspeth, 42 F.3d at 1021
(holding that defendant’s three burglaries over a 30‐minute period counted as separate
convictions under the ACCA); see also United States v. Morris, 293 F.3d 1010, 1014 (7th Cir.
2002) (holding that defendant’s two shootings, although close in time and proximity, were
distinct criminal episodes under the ACCA); Cardenas, 217 F.3d at 492 (holding that two
sales of crack separated by 45 minutes and one city block were separate offenses under the
ACCA). Pollard’s case is not even a close call: although he committed all three drug
offenses at his home, they were not at all temporally close, occurring on February 6, May 2,
and May 21 of 2002. They clearly constituted “separate and distinct criminal episodes,”
giving Pollard ample time to cease his criminal conduct between offenses. See Hudspeth, 42
F.3d at 1021. Pollard’s first challenge to the ACCA must therefore fail.
Pollard’s second challenge, as he recognizes, is similarly doomed under current law.
He argues that, in light of recent Supreme Court jurisprudence, the district court’s fact‐
finding regarding his criminal history violates the Fifth Amendment’s “beyond a reasonable
doubt” standard and his Sixth Amendment right to a jury trial. See United States v. Booker,
543 U.S. 220, 245 (2005); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). However, the
contrary rule established by Almendarez‐Torres v. United States, 523 U.S. 224, 226‐27 (1998),
which held that the existence of a prior conviction need not be proven to a jury but rather
may be determined by the judge at sentencing, is still good law. Although we have
questioned the validity of the Almendarez‐Torres rule after Apprendi and Booker, see United
States v. Browning, 436 F.3d 780, 782 (7th Cir. 2006), that issue can only be answered by the
Supreme Court, see id. We have repeatedly rejected this argument, and until the Supreme
Court overrules Almendarez‐Torres, it can fare no better here. See, e.g., United States v.
Hendrix, 509 F.3d 362, 375 (7th Cir. 2007); United States v. Stevens, 453 F.3d 963, 967 (7th Cir.
2006); United States v. Williams, 410 F.3d 397, 402 (7th Cir. 2005).
AFFIRMED.

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