United States of America v. Willis C. Cochran

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0491n.06
No. 22-5949
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIS C. COCHRAN,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
OPINION
Before: BUSH, LARSEN, and MURPHY, Circuit Judges.
LARSEN, Circuit Judge. Willis Cochran pleaded guilty to aiding and abetting bank
robbery. He now appeals the district court’s application of the career-offender enhancement. For
the reasons stated, we AFFIRM.
I.
On January 9, 2020, John Knotts robbed a bank in Ashland, Kentucky. After Knotts
implied that he had a weapon and demanded money, the teller put marked bills on the counter.
Knotts took $1,065. He left the bank in a white van that he and Cochran had stolen in preparation
for the robbery. Knotts drove to an apartment complex where Cochran was waiting for him in a
different vehicle. They abandoned the stolen van by a dumpster and drove to a different bank
where Knotts used $700 of the stolen loot to make a payment on a loan. Knotts gave Cochran
$240 for his assistance.

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A grand jury charged Cochran with aiding and abetting bank robbery by force or
intimidation in violation of 18 U.S.C. § 2113. Cochran entered a plea agreement that preserved
his right to appeal his sentence. The presentence report (PSR) calculated a Guidelines range of
151 to 188 months, including a career-offender enhancement under U.S.S.G. § 4B1.1(b)(3).
Cochran did not object to the career-offender enhancement. The district court accepted the PSR’s
recommendation and sentenced Cochran to 151 months’ imprisonment. Cochran timely appealed
his sentence.
II.
Cochran raises only one argument on appeal: that the district court erred by assessing the
career-offender enhancement pursuant to U.S.S.G. § 4B1.1. Because Cochran did not object to
the enhancement below, our review is for plain error only. United States v. Thomas, 969 F.3d 583,
584 (6th Cir. 2020) (per curiam). Under this standard, Cochran must show (1) error that (2) “was
clear or obvious,” (3) “affected [his] substantial rights,” and (4) “affected the fairness, integrity, or
public repudiation of judicial proceedings.” United States v. Babcock, 753 F.3d 587, 590–91 (6th
Cir. 2014) (quoting United States v. Massey, 663 F.3d 852, 856 (6th Cir. 2011)).
Section 4B1.1(a) provides that “[a] defendant is a career offender if (1) the defendant was
at least eighteen years old at the time the defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two prior felony convictions of either a crime
of violence or a controlled substance offense.” Cochran limits his argument to the third factor,
claiming that he did not have at least two prior felony convictions.
U.S.S.G. 4B1.2(c) clarifies that the defendant’s instant conviction must follow at least two
felony convictions “counted separately” under § 4A1.1. Convictions “always are counted

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No. 22-5949, United States v. Cochran
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separately if . . . separated by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2). And “[i]f there is
no intervening arrest, prior sentences are counted separately unless” they result from offenses “in
the same charging instrument” or the “sentences were imposed on the same day.” Id.
According to the PSR—which Cochran did not challenge below and does not challenge
now—Cochran had five robbery-related convictions, all of which added points to his criminal
history. Each of those convictions was separated by an intervening arrest. And Cochran does not
argue that the underlying offenses were not “crime[s] of violence” under § 4B1.1. The district
court did not err by imposing the career-offender enhancement, much less plainly so.
Cochran argues that the district court should have considered the Supreme Court’s decision
in Wooden v. United States, 595 U.S. 360 (2022). But that case is inapt. The issue in Wooden was
whether ten separate convictions arising from a single criminal episode may count ten times under
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). Wooden did not involve the
career-offender enhancement in U.S.S.G. § 4B1.1. Cochran correctly notes that both designations
require courts to find qualifying predicate offenses before applying the enhancements. But the
tests for determining when those predicate offenses count are entirely different. Under the ACCA,
convictions count separately when they are “committed on occasions different from one another.”
18 U.S.C. § 924(e)(1). Using the ordinary meaning of the word “occasion,” the Supreme Court
held that “multiple crimes may occur on one occasion even if not at the same moment.” Wooden,
595 U.S. at 366. By contrast, the “counted separately” test under U.S.S.G. § 4A1.2(a)(2) asks
whether there has been an intervening arrest, or whether the convictions resulted from offenses
charged “in the same charging instrument” or whose “sentences were imposed on the same day.”
Cochran did not object to the presentence report, so he accepted its factual allegations. United
States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc); see also Fed. R. Crim. P. 32(i)(3)(A).

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And Cochran does not dispute that he has at least five prior felony offenses separated by
intervening arrests. The U.S.S.G. § 4B1.1 career-offender enhancement plainly applies.
Cochran also argues that he had a right to have a jury determine whether he had qualifying
predicate offenses for purposes of the career-offender enhancement. Cochran did not raise this
issue below, so it too is reviewed for plain error. See Thomas, 969 F.3d at 584. Cochran has not
met that standard. Cochran does little to develop his jury argument. At points he suggests that
Wooden itself mandates the jury’s involvement in the determination of the facts underlying the
career-offender enhancement. If that is his argument, he is mistaken. As explained above, Wooden
involved the ACCA, not a Guidelines enhancement. And, in any event, Wooden expressly
declined to address “whether the Sixth Amendment requires that a jury, rather than a judge, resolve
whether prior crimes occurred on a single occasion.” Wooden, 595 U.S. at 365 n.3.1 If Cochran’s
argument is that application of the § 4B1.1 career-offender enhancement violates the Sixth
Amendment because it was based on facts not found by a jury, it is likewise unavailing. Cochran
was not entitled to jury findings to establish the predicate qualifying offenses because the
Guidelines are advisory. Vonner, 516 F.3d at 385.
The district court did not err in assessing the § 4B1.1 enhancement.
* * *
We AFFIRM.
1 Although the Supreme Court recently granted certiorari to review this issue, see Erlinger v.
United States, No. 23-370, 2023 WL 8007339 (Nov. 20, 2023), its resolution would not matter
here because this case involves the advisory Guidelines, not the ACCA.

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