UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

TIMOTHY EDMUN JOHNSON, 

a/k/a Timothy Edmund Johnson, 

 Defendant - Appellant. 

No. 17-6228 

(D.C. No. 5:16-CR-00239-HE-1) 

(W.D. Okla.) 

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ORDER AND JUDGMENT*

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Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. 

_________________________________ 

 This appeal involves a challenge to a sentencing enhancement under 

the Armed Career Criminal Act. The sentence enhancement was applied to 

Mr. Timothy Johnson after a conviction for possessing a firearm following 

a felony conviction. See 18 U.S.C. § 922(g). The Armed Career Criminal 

Act created a minimum sentence of fifteen years if Mr. Johnson had three 

 

*

 The parties have not requested oral argument, and we conclude that 

oral argument would not materially aid our consideration of the appeal. See

Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided 

the appeal based on the briefs. 

 Our order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value under 

Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 2, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

prior convictions for “a violent felony or a serious drug offense, or both, 

committed on occasions different from one another.” 18 U.S.C. 

§ 924(e)(1). 

 Mr. Johnson had multiple felony convictions in his past. Two of them 

were for distributing cocaine base and possessing cocaine base with intent 

to distribute. See Okla. Stat. tit. 63, § 2-401(A)(1). Mr. Johnson argues 

that these prior offenses 

 did not qualify as serious drug offenses and 

 had been committed on the same occasion. 

The district court rejected these arguments and sentenced Mr. Johnson to 

fifteen years in prison. We affirm. 

I. The prior convictions were for serious drug offenses. 

 Mr. Johnson first contends that the two prior offenses did not 

constitute “serious drug offense[s]” under the Armed Career Criminal Act. 

Classification as a “serious drug offense” involves statutory interpretation, 

which we review de novo. United States v. Trent, 884 F.3d 985, 991 (10th 

Cir. 2018). 

 The parties agree that 

 the statute of conviction is divisible and 

 the modified categorical approach applies. 

Under the modified categorical approach, we identify the crimes of 

conviction and compare the elements of those crimes and their generic 
3 

counterparts. United States v. Madkins, 866 F.3d 1136, 1145 (10th Cir. 

2017). 

The Oklahoma crimes were set out in a statute prohibiting 

individuals from transporting illicit drugs with the intent to distribute 

them. Okla. Stat. tit. 63, § 2-401(A)(1). The federal definition of a “serious 

drug offense” is “an offense under State law, involving manufacturing, 

distributing, or possessing with intent to manufacture or distribute, a 

controlled substance . . . .” 18 U.S.C. § 924(e)(2)(A)(ii). 

 Mr. Johnson contends that the federal definition of “serious drug 

offense” does not encompass the transportation of drugs. We disagree. It is 

true that the federal definition does not include the word “transportation.” 

But the federal definition does use the term “possessing,” and “the 

transportation of drugs necessarily implies their possession.” United States 

v. Svacina, 137 F.3d 1179, 1182 n.1 (10th Cir. 1998); see also United 

States v. Karam, 496 F.3d 1157, 1167 (10th Cir. 2007) (“Nor can there be 

any dispute that . . . [transporting] drugs intended for sale by the defendant 

. . . involve[s] possession with intent to distribute . . . .”). 

 Mr. Johnson relies on United States v. McKibbon, 878 F.3d 967 (10th 

Cir. 2017), and United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017). 

In these opinions, we applied the sentencing guidelines’ definition of a 

controlled-substance offense, holding that this definition did not cover 

offers to sell drugs. McKibbon, 878 F.3d at 972-73; Madkins, 866 F.3d at 
4 

1145, 1147-48. But the Oklahoma statute does not include offers to sell. 

This difference matters: Someone can offer to sell drugs without being 

guilty of an attempted sale,1

 but it is impossible to transport drugs without 

possessing them. McKibbon and Madkins involved statutes of conviction 

broader than their guideline counterparts; here, however, the statute of 

conviction is not broader than its counterpart in the Armed Career Criminal 

Act. In light of this difference, McKibbon and Madkins lack any bearing on 

the present issue. 

We therefore conclude that 

 transportation of drugs with intent to distribute is a crime 

“involving . . . possessing with intent to manufacture or 

distribute” and 

 the Oklahoma crime does not extend beyond the federal 

definition of a “serious drug offense.” 

II. Mr. Johnson’s prior convictions were for distinct offenses.

 Mr. Johnson also contends that the two prior offenses were 

committed on the same occasion. This contention is based on the Armed 

Career Criminal Act, which counts prior convictions only if the underlying 

crimes were committed on different occasions. 18 U.S.C. § 924(e)(1). 

In reviewing this contention, we engage in de novo review. United 

States v. Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012). This review 

 

1

 See Madkins, 866 F.3d at 1147 (“[B]ecause a person can offer a 

controlled substance for sale without having the intent to actually complete 

the sale, a conviction for an offer to sell can be broader than a conviction 

for an attempt to sell.”). 
5 

calls for us to consider how the two offenses unfolded. One afternoon, at 

about 4:20 p.m., an undercover investigator met with Mr. Johnson and 

asked to buy an ounce of crack cocaine. Mr. Johnson did not have an 

ounce, but he did have three grams and sold them to the investigator. Mr. 

Johnson also told the investigator how much an ounce would cost and 

agreed to call when a full ounce became available. The sale of three grams 

led to Mr. Johnson’s conviction for distributing cocaine base. 

 The next day, at 7:15 p.m., officers found thirteen grams of cocaine 

base in Mr. Johnson’s vehicle. Discovery of the drugs led to Mr. Johnson’s 

conviction for possessing cocaine base with intent to distribute. 

 Mr. Johnson argues that these two incidents involved the 

“continuation of a single drug deal, negotiated at the same time, between 

the same parties.” Appellant’s Opening Br. at 24. The two crimes were 

separated by little more than a day and were related in the sense that Mr. 

Johnson and the investigator had discussed a future drug purchase during 

the initial transaction. Nonetheless, the two offenses were distinct. 

 Two offenses are “committed on occasions different from one 

another” when they are “committed at distinct, different times.” United 

States v. Johnson, 130 F.3d 1420, 1431 (10th Cir. 1997) (internal quotation 

marks omitted). If the defendant decided to continue with a criminal course 

of conduct after “a meaningful opportunity” to stop, the crimes will be 
6 

considered distinct. United States v. Delossantos, 680 F.3d 1217, 1220 

(10th Cir. 2012). 

The crimes remain distinct even when the incidents take place in a 

short time span. For example, in United States v. Delossantos, we approved 

of a Fourth Circuit opinion holding that two sales of crack cocaine were 

distinct even though they had involved the same buyer at the same location 

within a two-hour time span. See id. (discussing United States v. 

Letterlough, 63 F.3d 332, 334, 337 (4th Cir. 1995)). And we have 

considered the crimes distinct when a defendant successively burgled three 

businesses in the same shopping mall on a single night. United States v. 

Tisdale, 921 F.2d 1095, 1098-99 (10th Cir. 1990). 

 Under these opinions, Mr. Johnson’s two prior offenses were distinct 

because 

 they took place at “distinct, different times” and 

 Mr. Johnson had “a meaningful opportunity” to stop his 

criminal course of conduct after selling three grams to the 

undercover investigator. 

Johnson, 130 F.3d at 1431 (internal quotation marks omitted); Delossantos, 

680 F.3d at 1220. The crimes remain distinct even though they had been 

committed on consecutive days and a future drug sale had been discussed 

at the first drug transaction. See United States v. Brown, 706 F. App’x 474, 

476 (10th Cir. 2017) (unpublished) (rejecting the argument that 

“convictions arising from repeat sales of controlled substances, the 
7 

subsequent sales of which are the direct result of the first sale, should be 

treated as the same offense” (internal quotation marks omitted)). 

Therefore, Mr. Johnson’s two prior offenses were “committed on occasions 

different from one another” under the Armed Career Criminal Act. 18 

U.S.C. § 924(e)(1). 

III. Conclusion

 We conclude that Mr. Johnson’s two prior drug offenses 

 were “serious drug offense[s]” and 

 took place on different occasions. 

18 U.S.C. § 924(e). Accordingly, the district court did not err and we 

affirm the sentence. 

Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge