United States Court of Appeals

For the Eighth Circuit

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No. 17-2626

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Devonte Darnell Holston

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Davenport

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Submitted: May 14, 2018

Filed: August 24, 2018

[Unpublished]

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Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.

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PER CURIAM.

Devonte Holston pled guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district court sentenced Holston 1

The Honorable John A. Jarvey, Chief Judge, United States District Court for

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the Southern District of Iowa.
to 180 months imprisonment, finding that he qualified for the mandatory-minimum

sentence imposed by the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e),

based on three prior convictions in Wisconsin state court for burglary of a building

or dwelling in violation of Wis. Stat. § 943.10(1m)(a). Holston appeals, and we

affirm.

“We review de novo the district court’s determination of whether [Holston’s]

criminal record qualified him as an Armed Career Criminal.” United States v.

Willoughby, 653 F.3d 738, 741 (8th Cir. 2011). The ACCA mandatory-minimum

sentence applies to an individual convicted of a violation of 18 U.S.C. § 922(g) who

“has three previous convictions . . . for a violent felony or a serious drug offense, or

both, committed on occasions different from one another.” § 924(e)(1). Unlike the

bulk of our precedent interpreting this section, the thrust of this appeal concerns the

question of whether the conduct underlying two of Holston’s prior convictions was

committed on different occasions. In 2013, Holston pled guilty in Wisconsin state

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court to a criminal complaint charging him with 2 counts of burglary. The complaint

indicates that Holston and two codefendants burgled residences at two separate

addresses, and the associated judgment shows restitution owed to two different

victims. Holston insists that this was a single criminal episode and that these two

incidents therefore count only as one previous conviction for the purpose of

qualifying him as an armed career criminal.

Holston briefly argues that the burglary statute under which he was convicted

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does not meet the definition of “violent felony” found in § 924(e)(2)(B), but he

concedes that we held to the contrary in United States v. Lamb, 847 F.3d 928, 932,

934 (8th Cir. 2017), cert. denied, 138 S. Ct. 1438 (2018). Given our “cardinal rule

. . . that one panel is bound by the decision of a prior panel,” Mader v. United States,

654 F.3d 794, 800 (8th Cir. 2011) (en banc) (internal quotation marks omitted), we

reject this argument.

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Holston argues that, to resolve this inquiry, the district court is limited to

investigating the documents approved of by the Supreme Court in Shepard v. United

States, 544 U.S. 13 (2005), and that the complaint is not included in those documents. 

However, in the context of Sixth Amendment challenges, we have expressly rejected

this argument and held that Shepard is inapplicable when determining whether the

conduct underlying prior convictions was committed on different occasions. See 3

United States v. Evans, 738 F.3d 935, 936-37 (8th Cir. 2014); United States v.

Richardson, 483 F. App’x 302, 304-05 & n.3 (8th Cir. 2012). Accordingly, we may 4

view both the complaint and the unobjected-to portions of Holston’s presentence

investigation report (“PSR”) to determine whether these burglaries were committed

on different occasions.

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“Prior convictions must be separate and distinct criminal episodes [t]o qualify

as predicate offenses under the statute.” Pledge, 821 F.3d at 1038 (alteration in

original) (internal quotation marks omitted). “Crimes occurring even minutes apart

can qualify, however, if they have different victims and are committed in different

We note that, even if Shepard applied so as to preclude consideration of 3

certain documents in determining whether the conduct underlying Holston’s prior

convictions was committed on separate occasions, we conclude that the complaint,

as redacted, would be reviewable under Shepard.

To the extent there is any conflict between Evans and our decision in United

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States v. Pledge, 821 F.3d 1035, 1038 (8th Cir.), cert. denied, 137 S. Ct. 258 (2016),

Evans controls under the first-in-time rule. See Mader, 654 F.3d at 800. 

Holston vigorously contested the PSR’s recommendation that he be sentenced 5

as an armed career criminal, but he did not dispute any of the underlying factual

matters contained in the PSR. As such, we may accept those facts astrue. See United

States v. Douglas, 646 F.3d 1134, 1137 (8th Cir. 2011) (“If a defendant objects only

to the PSR’s recommendation, but not to the facts themselves, the court may accept

the facts as true and rely on the unobjected-to facts in determining whether to impose

an enhancement.”).

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locations.” United States v. Deroo, 304 F.3d 824, 828 (8th Cir. 2002). In the past,

we have looked to the following three factors “in deciding whether offenses are

sufficiently separate and distinct to serve as individual predicate convictions for

ACCA enhancement: (1) the time lapse between offenses, (2) the physical distance

between their occurrence, and (3) their lack of overall substantive continuity, a factor

that is often demonstrated in the violent-felony context by different victims or

different aggressions.” Willoughby, 653 F.3d at 742-43.

We conclude that the district court properly counted Holston’s conviction for

two counts of burglary as two prior convictions. First, although the complaint

indicates that both offenses occurred at 2:00 in the afternoon, this is not dispositive. 

See id. at 743 (“[T]o prove that two offenses are sufficiently separate and distinct for

ACCA purposes, it is sufficient (although, not necessary) to show that some time

elapsed between the two prospective predicate offenses.”). Second, Holston pled

guilty to burgling two separate residences. See Pledge, 821 F.3d at 1037. Finally,

and perhaps most importantly in this case, there were two different victims, as

evidenced by Holston owing different amounts of restitution to each recipient. See

Deroo, 304 F.3d at 828. Thus, looking only at the complaint and judgment, we

believe that these two incidents were “sufficiently separate and distinct” to qualify as

separate criminal episodes. Willoughby, 653 F.3d at 742.

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Because he “has three previous convictions . . . for a violent felony . . .

committed on occasions different from one another,” § 924(e)(1), the district court

properly sentenced Holston as an armed career criminal. Accordingly, we affirm.

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This conclusion is confirmed by a glance at the unobjected-to facts in the PSR, 6

which indicate that Holston, accompanied by other individuals, actually entered both

residences and stole an 18-inch television from one residence and a 73-inch

projection television from the other.

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