# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 14-3312

___________________________ United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.
Donald Boman

lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids

____________ Submitted: September 24, 2015 Filed: January 7, 2016

____________ Before MURPHY, MELLOY, and SMITH, Circuit Judges.

____________ MELLOY, Circuit Judge. A jury convicted Donald Boman (Boman) of possessing a firearm and ammunition as a felon. The district court 1 sentenced him to 262 months in prison. On appeal, Boman argues the district court co mmitted five reversible errors: the court improperly (1) excluded the introduction of “reverse” Federal Rule of Evidence

1 The Honorable Linda R. Reade, Chief J udge, United States District Court for the Northern District of Iowa.404(b) evidence relating to a criminal conviction of the victim, Marcus Brown (Brown); (2) excluded, under Federal Rule of Evidence 403, evidence relating to proof of Brown’s motive and bias against Boman; (3) admitted Brown’s 911 phone call under the excited-utterance exception of Federal Rule of Evidence 803(2); (4) classified Boman as an Armed Car eer Criminal under 18 U.S.C. § 924(e); and (5) applied a four-level enhancement under USSG § 2K2.1(b)(6)(B ) after determining Boman possessed a firearm in connection with the Iowa felony offense of Intimidation with a Dangerous Weapon. We affirm.

I. Facts and Procedural History

On November 2, 2013, Cedar Rapids Police Officers responded to a 911 call regarding a shooting. Once the officers arri ved at the scene of the shooting, Officer Zach Jeffries spoke with Brown, who wa s walking across the street and “thought he had been shot.” After conducting a pat-dow n of Brown, Officer Jeffries determined Brown had not been shot nor did Brown have any weapons.

Next, Officer Jeffries spoke with witnesse s at the scene of the incident. From those conversations, Officer Jeffries lear ned the suspected shooter, Boman, was located inside the residence at 1800 Ridge wood Terrace Southeast. Sergeant Steven Yardly contacted Boman, and Boman walked out of the residence. Officer Jeffries then handcuffed Boman and placed hi m in the back of his squad car.

Jamie Cooper, Boman’s girlfriend, lived with Boman and arrived at the scene shortly thereafter. At that time, Cooper cons ented to the police offi cers’ search of her home. During the search, Cooper was cooperative and directed the officers to her bedroom dresser, which is where she said a firearm would be located. Cooper shared the bedroom with Boman. The officer s located the firearm and two boxes of ammunition. One box contained fifty rounds of ammunition and the other box

-2-contained forty rounds of ammunition. Th e magazine in the firearm was missing one round.

Cooper’s daughters, Cheyenne Cinkan a nd Jade Hasson, also lived at the residence, along with Cinkan’s children. Cinkan had recently moved to the residence shared by Boman and her mother, Cooper, to avoid living with he r boyfriend, Brown. This is because Brown physically abused Cinkan. In fact, earlier on November 2, 2013, Brown and Cinkan got into an argumen t at Boman’s and Cooper’s home. Soon thereafter, an argument ensu ed between Boman and Brown.

Sarah Michaels testified to witnessing the altercation. She said it involved two African American men, one ta ller than the other. The shorter man yelled from across the street, “Do it nigger! Do it nigger!” A taller African-American man then ran across the street, hit the other man, reached for his hip, and pointed his hand at the man on the ground. Michaels then heard a pop noise. 2 Michaels and Cinkan called 911 following this incident. After Cinka n handed Brown the phone, Brown reported to the 911 dispatcher that “Donnie” had shot at him.

On March 18, 2014, a grand jury return ed a one-count superseding indictment against Boman charging him with unlawfully possessing a firearm and ammunition as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Following a two-day jury trial, the jury found Boman guilty of possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). Ultimatel y, the district court sentenced Boman to 262 months, at the bottom of his 262- to 327-month advisory guideline range.

2 Two other witnesses testified at Boman’s trial that they heard a single loud noise on the afternoon of November 2, 2013.
-3-II. Discussion

“We review a district court’s evidentiary rulings for clear abuse of discretion, reversing only when an improper eviden tiary ruling affected the defendant’s substantial rights or had more than a sli ght influence on the verdict.” United States v. Webster , 797 F.3d 531, 537 (8th Cir. 2015) ( quoting United States v. Espinoza , 684 F.3d 766, 778 (8th Cir. 2012)). In reviewing evidentiary ru lings, “we afford deference to the district judge who saw and heard the evidence.” United States v. Donnell , 596 F.3d 913, 919 (8th Cir. 2010) (quoti ng United States v. Espinosa , 585 F.3d 418, 430 (8th Cir. 2009)).

In addition, “[w]e review de novo whet her a prior conviction is a predicate offense under the [Armed Career Criminal Act (ACCA)].” United States v. Abbott , 794 F.3d 896, 897 (8th Cir. 2015) (per curi am) (quoting United States v. Humphrey , 759 F.3d 909, 911 (8th Cir. 2014)). Where a defendant fails to raise an objection, such as to the district court’s allegedly wr ongful classification of the defendant’s prior convictions as violent felonies under the ACCA, we review for plain error. See United States v. Pirani , 406 F.3d 543, 549 (8th Cir. 2005).

A. Inadmissible Reverse 404(b) Evidence

Prior to trial, Boman sought to intr oduce Brown’s prior convictions under Rule 404(b) to show that Brown, not Boman, possessed the firearm. The government sought to introduce Boman’s prior convictions . The district court held that neither party could introduce such ev idence because the prior convictions were too remote in time and violated Rule 403. On appeal, Bo man argues the distri ct court abused its discretion in excluding the reverse 404(b) evidence relating to Brown’s prior convictions because the district court mi sapplied the four-factor 404(b) test adopted by the Eighth Circuit Court of Appeals. According to Boman, Brown’s prior

-4-convictions “were sufficiently proximate to this incident and their introduction bore little risk of confusing the issues, misleading the jury or wasting court time.”

Under Rule 404(b), evidence of other “[c]ri mes, [w]rongs, or [o]ther [a]cts,” are admissible for “proving motive, opportunity , intent, preparation, plan, knowledge, identity, absence of mistake, or lack of acci dent.” Fed. R. Evid. 404(b)(2). “Rule 404(b) evidence is typically introduced by th e prosecution to help prove the defendant guilty of the charged crime.” United States v. Battle , 774 F.3d 504, 512 (8th Cir. 2014). By contrast, “‘[r]everse 404(b)’ is a term some courts ha ve used to refer to evidence of prior bad acts by a third party, introduced by the defendant and offered to implicate the third party in the charged crime.” Id. In determining whether to admit Rule 404(b) (or reverse 404(b)) evid ence, courts are directed to consider whether the evidence is: “(1) relevant to a ma terial issue; (2) similar in kind and close in time to the crime charged; (3) proven by a preponderance of the evidence; and (4) if the potential prejudice does not substan tially outweigh its probative value.” Id. at 513 (quoting United States v. Thomas , 398 F.3d 1058, 1062 (8th Cir. 2005)).

This Court has expressed its reluctan ce to uphold the admission of evidence of prior offenses occurring more than 13 year s prior to the charged offense. See United States v. Strong , 415 F.3d 902, 905 (8th Cir. 2005). However, it has “approved the admission of prior firearm convictions unde r Rule 404(b) where more time separated the prior offense and the charged offense.” See United States v. Halk , 634 F.3d 482, 487 (8th Cir. 2011) (citing United States v. Walker , 470 F.3d 1271, 1275 (8th Cir. 2006) (eighteen years separated the prior and charged offense); Strong , 415 F.3d at 906 (sixteen years separated the prio r and charged offense)). In Halk and Walker , this Court was persuaded that 19-y ear-old and 18-year-old convi ctions were not so remote in time as to render them inadmissibl e because the defendants spent significant periods of time in prison between their offenses. See Halk , 634 F.3d at 487 (12 years of incarceration); see also Walker , 470 F.3d at 1275 (10-year period of incarceration).

-5-Here, the district court did not abus e its discretion when it excluded the evidence of Brown’s and Boman’s prior convictions. 3 In its pre-trial order, the district court recognized that the “potential prej udice is lessened when a defendant offers 404(b) evidence pertaining to a third part y.” The court, neve rtheless, held that Brown’s prior convictions were inadmissible under reverse 404(b) for the same reasons Boman’s prior convictions were inadmissible under Rule 404(b). Brown’s 1993 conviction was too remote in time to be admitted under reverse Rule 404(b); it occurred approximately 21 years prior to the charged offense. Relying on Walker , the district court also ruled that Boman’ s 1992 conviction was too remote. Boman presented no evidence that Brown was incar cerated for a significant period of time after his 1993 offense. Without such evid ence, Brown’s 21-year-old conviction goes beyond the limits of Rule 404(b) admissibility established by Strong , Walker , and Halk . In addition, Brown’s 2012 conviction of burglary in the third degree was not “similar in kind” to his a lleged conduct nor was it logica lly connected for the purposes Boman sought to use it because his 2012 c onviction did not refer to a firearm possession. Thus, the distri ct court did not abuse its discretion in denying the admissibility of the reverse 404(b) evidence.

B. Inadmissible Proffered Defense Ev idence As to Collateral Disputes

On the morning of the second day of tr ial, defense counsel sought to present evidence of Brown’s motive and bias agai nst Boman. To do so, defense counsel proposed to elicit testimony from Officer Antoine Smith about whether Cinkan had a black eye on the day of the incident and whether Brown gave he r that black eye. The district court ruled Officer Smith’s testimony was inadmissible because the trial was not a “domestic abuse tria l” or an “assault trial,” a nd “[a]ny relevance this has is

3 In 1992, Boman was convicted of two counts of using a firearm during the commission of a violent crime and one count of robbery. In 1995, Boman was convicted of assault within maritime and te rritorial jurisdiction. In 1993, Brown was convicted of armed violence and aggravated battery with a firearm. In 2012, Brown was convicted of burglary in the third degree.
-6-outweighed by getting into things that are not relevant, that take time and are kind of a collateral matter.”

Additionally, defense counsel sought to ask Hasson, Cinkan’s sister, about the subject matter of Cinkan’s and Brown’s argument on the day of the incident. Namely, defense counsel argued that Brown planne d to steal Cinkan’s government assistance funds. The district court stated that Boma n’s theory was “farfetc hed” and, “[t]o the extent it has any relevance at all, it’s outweighed by waste of time, collateral matter.”

On appeal, Boman argues the district court erred in excluding the above testimony under Rule 403. Boman further c ontends the evidence was relevant and there was no danger of confusing the issues, misleading the jury, or causing undue delay or undue prejudice to the government. According to Boman, Brown was biased against Boman because Boman sought to prevent Brown from abusing Cinkan and taking her government assistance funds. T hus, Boman contends, Brown had a motive to fabricate charges against Boman. Boma n further argues that the district court’s decision to prevent him from introducing evidence of Brown’s motive and bias against Boman was an abuse of discretion.

Rule 403 permits a court to “exclude relevant eviden ce if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “Confusion of the issues warrants exclusion of relevant evid ence if admission of the evidence would lead to litigation of collateral issu es.” United States v. Condon , 720 F.3d 748, 755 (8th Cir. 2013) (quoting Firemen’s Fund Ins. Co. v. Thien , 63 F.3d 754, 758 (8th Cir. 1995)). “In determining whether proffered evidence is misleading or confusing, the trial court is given a great deal of discretion.” Id. (quoting United States v. Witschner , 624 F.2d 840, 846 (8th Cir. 1980)).

-7-At trial and in the district court’s pos t-trial order, filed on May 23, 2014, the district court expressed its reservations regarding Boman’s proffered defense evidence. In its post-trial order, the dist rict court explained that, although it permitted Boman “to cross-examine witnesses about th e fact that Cheyenne Cinkan had a black eye on the day of the incident,” the court “did not permit [Boman] to delve into alleged prior abuse of Cheye nne Cinkan.” Citing Rule 403, the district court reasoned that “[w]hat limited probative value this line of questioning might have had was ‘substantially outweighed by a danger of . . . confusing the issues, misleading the jury [and causing] undue delay.’” Similarly, the district court concluded the subject matter of the argument between Brown and Cinka n was inadmissible for the same reasons under Rule 403. We conclude the district court did not abuse its considerable discretion in deciding that Boman’s pro ffered evidence was inadmissible under Rule 403 for the reasons provided at trial and in its post-trial order. See Clark v. Martinez , 295 F.3d 809, 813 (8th Cir. 2002) (reviewing a district court’s ruling excluding evidence for an abuse of discretion and finding the district court did not abuse its “broad discretion” by excluding certain testimony).

C. Admissible 911 Recording

At trial, the district court permitted the admission of a recording of Cinkan’s and Brown’s 911 call, finding the recording qualified as an excited utterance under Rule 803(2). On appeal, Boman argues the district court erred because the government did not prove the startling ev ent took place; “Brown only acknowledged that he heard a gunshot, nothing more.” Put differently, Boman contends the government failed to provide an adequate foundation to prove the startling event occurred. Boman also argues the government failed to prove the statements on Brown’s 911 call related to the startling even t. For these reasons, Boman argues the recording “lacked sufficient indicia of trut hfulness to qualify as a hearsay exception.”

-8-Pursuant to Rule 803(2), “[a] statement relating to a startling event or condition, made while the declarant was under the stre ss of excitement that it caused” is not excluded by the rule against hearsay. Fed. R. Evid. 803(2). “The rationale behind this particular exception ‘derives from the teaching of experien ce that the stress of nervous excitement or physical shock stills the reflective faculties, thus removing an impediment to truthfulness.’” United States v. Graves , 756 F.3d 602, 604 (8th Cir. 2014) (quoting Brunsting v. Lutsen Mtns. Corp. , 601 F.3d 813, 817 (8th Cir. 2010)).

The record supports the trial court’s hol ding that Brown experienced a startling event and that Brown’s and Cinka n’s statements related to th e incident. As the district court aptly explained in its post-trial order, the government properly laid the foundation for the underlying startling even t by having Brown te stify: “[Brown] testified that the 911 call was placed i mmediately after he heard a gunshot and checked himself for bullet wounds.” The char acteristics of that incident would likely cause a reasonable person to become stressed or excited. We do not disagree with the district court’s conclusion that “Brown’s statements were made while under the stress caused by the gunshot.” Brown also clearly described on the recording the event that startled him—that is, “Donnie” had just shot at him. For the above reasons, we find the district court did not abuse its discre tion in admitting the 911 call under the excited utterance exception of Rule 803(2). See United States v. Brun , 416 F.3d 703, 707 (8th Cir. 2005); United States v. Phelps , 168 F.3d 1048, 1055 (8th Cir. 1999) (both affirming district courts’ admissions of statements made during 911 calls, following gunshots being fired, as excited utterances).

D. Armed Career Criminal

At sentencing, the district court f ound Boman was an Armed Career Criminal because he had three prior convic tions for violent felonies. See 18 U.S.C. § 924(e). On appeal, Boman concedes his 1995 convi ction for Assault within Maritime and Territorial Jurisdiction constitutes a predi cate offense under the ACCA. However, in

-9-his opening brief, Boman argues the district court erred in classifying his two 1992 felony convictions for Use of a Firearm During the Commission of a Violent Crime as predicate offenses under the ACCA. According to Boman, his 1992 convictions in violation of 18 U.S.C. § 924(c)(1) “were not meaningfully separated by time, the government failed to meet its burden with respect to the distance between offenses, and the offenses were similar in executi on and motivation.” Thus, Boman argues his two convictions in 1992 were, at most, one rather than two predicate offenses under the ACCA. In his opening brief, Bo man does not contest whether his 1992 convictions constituted violent felonies under the ACCA. However, in his supplemental brief, Boman contends that his convictions in 1992 did not even qualify as ACCA predicate offenses because they were not “vio lent felonies” under 18 U.S.C. § 924(e)(2)(B)(i). 6

Under the ACCA, a defendant convict ed under 18 U.S.C. § 922(g), who has “three previous convictions by any court . . . for a violent felony or a serious drug offense, or both, committed on occasions diffe rent from one another,” is subject to a 15-year minimum sentence of imprisonment. 18 U.S.C. § 924(e)(1). A “[v]iolent felony” is defined as “any crime punishable by imprisonment for a term exceeding one

6 Earlier, in a Rule 28(j) letter sent to this Court, dated July 6, 2015, Boman presented a different argument. In his Rule 28(j) letter, Boman argued the United States Supreme Court’s recent d ecision in Johnson v. United States , 135 S. Ct. 2551 (2015), was relevant to whether his 1992 c onvictions for violations of § 924(c)(1) qualified as violent felonies unde r § 924(e)(2)(B). In Johnson , the Supreme Court held that imposing an increas ed sentence pursuant to the re sidual clause of the ACCA, § 924(e)(2)(B)(ii), violates due proce ss under the Fifth Amendment. Johnson , 135 S. Ct. at 2563. However, as we have held elsewhere, Johnson is not implicated if a defendant’s prior conviction comes from the first definition of a “violent felony” in the ACCA, or 18 U.S.C. § 924(e)(2)(B)(i). See Ortiz v. Lynch , 796 F.3d 932, 935 n.2 (8th Cir. 2015); see also United States v. Harris , 794 F.3d 885, 887 n.1 (8th Cir. 2015). Thus, because Boman concedes his two convictions pursuant to § 924(c)(1) in 1992 “may only qualify as ACCA predicates under § 924(e)(2)(B)(i),” not § 924(e)(2)(B)(ii), Johnson ’s invalidation of the residua l clause does not change the outcome here.
-10-year . . . that . . . has an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). In deciding whether a past conviction is a “violent felony” for ACCA purposes, we apply the “categorical approach” or the “modi fied categorical approach.” See United States v. Mathis , 786 F.3d 1068, 1071–72 (8th Cir. 2015).

“In the typical case, we use the ‘cate gorical approach’ to determine whether prior convictions amount to violent felonies.” Id. at 1071. “This approach requires courts to ‘look only to the fact of conviction and the statutory definition of the prior offense.’” Id. at 1071–72 (quoting Taylor v. United States , 495 U.S. 575, 602 (1990)). On the other hand, this Court may apply the “modified categori cal approach” where a statute is divisible, which “allows cour ts to examine certain documents (such as charging papers and jury instructions) to determine under which set of alternative elements the defendant was convicted.” Id. at 1072. As this Court recently explained in United States v. Tucker , a statute of conviction is c onsidered “divisible” for ACCA purposes where the statute “sets out one or more elements of the offense in the alternative.” 740 F.3d 1177, 1179 (8th Cir. 2014) (en banc); see also Descamps v. United States , 133 S. Ct. 2276, 2282 (2013) (“[S]ent encing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.”).

In this case, Boman’s statute of conviction, 18 U.S.C. § 924(c) (1992), was divisible because it criminali zed the use or carrying of a firearm during and in relation to “any crime of violence or drug trafficking crime.” 7 18 U.S.C. § 924(c)(1)(A) (1992) (emphasis added); United States v. Rodriguez-Moreno , 526 U.S. 275, 280

7 At the time Boman committed the offense and pleaded guilty, 18 U.S.C. § 924(c)(1) provided: “Whoever , during and in relation to any crime of violence or drug trafficking crime . . . for which he ma y be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime . . . be sentenced to imprisonment for five years . . .” 18 U.S.C. § 924(c)(1) (1992).
-11-(1999) (“In sum, we interpret § 924(c)(1) to contain two distinct conduct elements—as is relevant to this case, the ‘using and carrying’ of a gun and the commission of a kidnapping.”). Our conclusion that Boman’s statute of conviction was divisible is bolstered because the base s for his conviction we re separated by the disjunctive “or.” United States v. Bankhead , 746 F.3d 323, 326 (8th Cir. 2014) (“The hallmark of divisibility is the enumeration of alternative bases for conviction separated by the disjunctive ‘or.’”). The statutory scheme was also further divisible because “crime of violence” under § 924(c)(3) in cluded two definitions and § 924(c)(3) proscribed conduct occurring “against the person or property of another.” See 18 U.S.C. § 924(c)(3) (emphasis added). T hus, we apply the “modified categorical approach” to determine the crime for whic h Boman was convicted and whether it was a “violent felony.”

The modified categorical approach enable s a court to “examine the trial record, including charging documents, jury instruc tions, written plea agreements, transcripts of plea colloquies, and findings of fact a nd conclusions of law from a bench trial.” United States v. Vinton , 631 F.3d 476, 484 (8th Cir. 2011) (quoting Shepard v. United States , 544 U.S. 13, 20 (2005)). Having review ed the indictment and 1992 judgment, it is clear Boman was charged and convicted in Counts 3 and 6 for using a firearm during the commission of “a violent crime,” namely, the federal crimes of robbery, 18 U.S.C. § 2111, and assault w ith intent to commit robbery, 18 U.S.C. § 113(b). To commit a robbery under § 2111 in 1992, a defendant had to, “within the special maritime and territorial jurisdiction of the United States, by force and violence, or by intimidation, take from the person or pres ence of another anythi ng of value[.]” 18 U.S.C. § 2111 (1992). To commit an assa ult under § 113(b) in 1992, a defendant, “within the special maritime and territorial jurisdiction of the United States,” had to have committed “[a]ssault with intent to commit any felony.” 18 U.S.C. § 113(b) (1992). Therefore, each of Boman’s convicti ons in violation of § 924(c)(1) had as an element the “attempted use, or threatened use of physical force against the person of another.” See 18 U.S.C. § 924(e)(2)(B)(i). Also, Boman’s convictions under §

-12-924(c)(1) each carried a consecutive si xty-month prison sentence. See id. Thus, the district court did not commit plain error in holding Boman’s violations of § 924(c) qualified as violent felonies under § 924(e)(2)(B)(i). 8

For purposes of analyzing whether the di strict court erred in deciding Boman’s 1992 convictions were “sufficiently separate a nd distinct criminal episodes” to be two, rather than merely one, predicate offens es under the ACCA, we must consider the facts surrounding those episodes. 9 On May 3, 1992, at 3:00 a.m., Boman pulled a handgun, pointed it at a victim, and dema nded money. Boman took $220.00 from the victim and told the victim to run. As th e victim ran away, he heard a gunshot and fell and heard two more gunshots. Later that same morning, at 4:30 a.m., Boman pointed a handgun at a different vic tim and demanded money. The victim gave Boman $20.00. Boman placed the barrel of his gun to his victim’s temple, demanded more money, and threatened the victim. As Bo man walked away, he turned and shot four times at the victim who ducked inside a tr uck. Boman shot the front windshield on the driver’s side of the truck. With th ese facts in mind, we analyze three important factors to decide if the criminal episode s were discrete: “(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.” United States v. Willoughby , 653 F.3d 738, 742–43 (8th Cir. 2011).

8 Although we conclude a violation of 18 U.S.C. § 924(c) constitutes a “violent felony” under the ACCA, the parties do not cite ca se law directly supporting that finding. Our research has reveal ed, however, that we are not the first federal circuit
cour t to make such a finding. S ee, e.g. , United States v. Stephens , 237 F.3d 1031, 1033 (9th Cir. 2001) (finding defendant’s conviction for carrying a gun in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c) constituted a “violent felony” under the ACCA); but see id. at 1034–35 (Reinhardt, J., dissenting). 9 No party suggests that we are prohibited from examining the facts involved in the prior offenses to assess the issue of separateness. The f acts we consider are from Boman’s plea agreement in 1992.
-13-First, ninety minutes separated Boma n’s two criminal episodes, which weighs heavily in favor of finding the crimes were separate and distinct offenses under the ACCA. See United States v. Gray , 85 F.3d 380, 381 (8th Cir. 1996); see also United States v. Hamell , 3 F.3d 1187, 1191 (8th Cir. 1993) (both cases involved offenses separated by only twenty-five minutes but th e offenses were s till found separate and distinct offenses under the ACCA). Even Boman admits the first factor, which we have found is the “most important cons ideration,” favors the government. See Abbott , 794 F.3d at 898 (“[T]he first factor is the most important consideration because ‘the ACCA seems to prioritize time lapse given th at its plain language stipulates that the predicate offenses be committed on occasions different from one another .’”) (alteration in original) (internal quot ation marks and citations omitted).

Second, the two criminal episodes occurre d in two different places within Fort Carson, Colorado: one crime occurred at th e base’s general co mmissary and another took place at the base’s separate store for non-commissioned officers. The distance between these locations is unclear from the record. However, Hamell suggests two convictions can occur in close physical proximity—there, the defendant stabbed a victim in a tavern and then shot anot her victim outside the tavern—and still be deemed separate offens es under the ACCA. See Hamell , 3 F.3d at 1191. Thus, even if Boman’s crimes occurred w ithin a close distance of each other, they would likely still be separate offenses under the ACCA

.
Third, based upon the narrative above, th e two criminal episodes committed by Boman in 1992 involved different victims a nd criminal aggressions. Thus, Boman’s 1992 convictions for Counts 3 and 6 involved different victims, times, acts, and locations. For the above reasons, the distri ct court did not err in finding the offenses were, in the district court’s words, “discr ete criminal episodes. ” Accordingly, the district court did not plainly err in decidi ng Boman had three previous convictions and qualified as an Armed Career Criminal under the ACCA.

-14-E. Possession of Firearm in Connection with Iowa Offense of Intimidation

At sentencing, the district court app lied a four-level enhancement under USSG § 2K2.1(b)(6)(B). On appeal, Boman argues the district court clearly erred for two reasons. First, the government failed to prove by a preponderance of the evidence that Boman discharged a firearm in Brown’s direction. As Boman put it, “[I]t is at least as likely that the ‘gunshot’ came from Brow n’s discharge of a firearm, not Mr. Boman’s.” Nor did the government disprove Boman’s justification for firing a shot in the direction of Brown by a prepondera nce of the evidence. Because Boman was sentenced as an Armed Career Criminal, we need not a ddress his challenge to the district court’s assessment of a four-l evel enhancement under § 2K2.1(b)(6)(B). Boman’s base offense level without the e nhancement was 24, but his base offense level with the enhancement was 28. The ACCA, however, resulted in an even higher base offense level and drove Boman’s sentence. See USSG § 4B1.4. Therefore, even if we agreed with Boman on this issue, hi s base offense level w ould remain the same.

III. Conclusion

Based on the foregoing reasons, we find the district court did not commit reversible error by its evidentiary rulings or sentencing decisions pursuant to the ACCA. Therefore, we affirm Boman’s conviction and sentence.

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