United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-3237

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Ervin D. Abbott

lllllllllllllllllllll Defendant - Appellant

____________

Appeal from United States District Court 

for the Western District of Missouri - Kansas City

____________

 Submitted: May 11, 2015

 Filed: July 22, 2015

[Published]

____________

Before WOLLMAN, SMITH, and BENTON, Circuit Judges.

____________

PER CURIAM.

Ervin Abbott appeals the district court's application of the Armed Career 1

Criminal Act (ACCA), 18 U.S.C. § 924(e), to his sentence. Abbott argues that two

The Honorable Dean Whipple, United States District Judge for the Western 1

District of Missouri. 
previous convictions for drug offenses should not be counted astwo predicate ACCA

crimes. We affirm. 

I. Background

On May 15, 2013, law enforcement officers stopped Abbott's vehicle because

its license plate had three active arrest warrants associated with it. Officers arrested

Abbott after they confirmed that he had an active arrest warrant. After his arrest,

Abbott orally consented to the search of his vehicle. Officers recovered a pistol

underneath the driver's seat. Thereafter, a canine officer located 11.5 grams of

marijuana hidden in the center console of the vehicle. Later that day, Abbott also

consented to a custodial interview during which he admitted that he had recently

bought the pistol for personal protection and placed it under the driver's seat of the

car.

The government charged Abbott with one count of being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1). Abbott pleaded guilty to the

charge without a written plea agreement. 

At Abbott's sentencing hearing, the district court found that Abbott had the

necessary three predicate "serious drug offense[s]" and applied the ACCA. See 18

U.S.C. § 924(e)(2)(A). Abbott objected, arguing that the court should count two of

his prior drug offenses as one offense for ACCA purposes because they were a part

of the same criminal episode. Specifically, Abbott pleaded guilty to two counts of

selling a controlled substance in 2004. On June 8, 2004, Abbott sold .4 grams of

cocaine base to an undercover detective for $20; the next day on June 9, Abbott sold

.28 grams of cocaine base to the same undercover detective, again for $20.

Nevertheless, the district court ruled that "[i]t makes no difference that they're one

day apart. They're different sales on different days. The Court is going to rule that one

sale is on June the 8th, 2004, and the next sale is on June 9th, 2004. Now, those are

two priors." The district court relied upon our precedent in concluding that "for

-2-
purposes of applying the [ACCA], . . . they're separate sales and we're going to count

them." As a result, the court found that these two predicate convictions, when added

to another uncontested drug conviction, met the necessary threshold of three serious

drug offenses to trigger the ACCA. The district court sentenced Abbott to the

statutory minimum of 180 months' imprisonment. 

II. Discussion

On appeal, Abbott argues that the district court erred by counting both of his

convictions for selling controlled substances on June 8 and 9, 2014, as separate

ACCA predicate crimes. "'We review de novo whether a prior conviction is a

predicate offense under the ACCA.'" United States v. Humphrey, 759 F.3d 909, 911

(8th Cir. 2014) (quoting United States v. Van, 543 F.3d 963, 966 (8th Cir. 2008)).

While Abbott concedes that he made cocaine sales on June 8 and 9, 2004, he argues

that the facts and circumstances of the different sales are so similar that they should

be considered as one offense for ACCA purposes because they constituted a single

criminal episode. Specifically, Abbott highlightsthat the sales were made to the same

undercover agent for the same amount of money; additionally, he points out that it is

unclear whether the sales took place at the same or different locations. 

We have "considered at least three factors as important considerations in

deciding whether offenses are sufficiently separate and distinct to serve asindividual

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." United States v. Willoughby, 653 F.3d 738, 742–43 (8th Cir.

2011). Nevertheless, the first factor is the most important consideration because "the

ACCA seems to prioritize time lapse given that its plain language stipulates that the

predicate offenses be 'committed on occasions different from one another.'" Id. at 743

(citing 18 U.S.C. § 924(e)(1)). 

-3-
"Accordingly, . . . to 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." Id. (citation

omitted)). "'[W]e have repeatedly held that convictions for separate drug transactions

on separate days are multiple ACCA predicate offenses, even if the transactions were

sales to the same victim or informant.'" United States v. Ross, 569 F.3d 821, 823 (8th

Cir. 2009) (quoting Van, 543 F.3d at 966). In Ross, we held that convictions for drug

sales that happened on separate days—February 8 and 11, 2001—should be treated

as separate drug offenses based on their temporal separation. Id. at 823; see also

United States v. Gray, 152 F.3d 816, 820–21 (8th Cir. 1998) (finding that two sales

of drugs separated by one day—January 26 and 27, 1990—that took place in the same

motel room should be counted astwo separate drug offenses for sentencing purposes

under 21 U.S.C. § 841(b)(1)(A)). Thus, we agree with the district court that Abbott's

previous convictions for the June 8 and 9, 2004 drug crimes have sufficient temporal

separateness to be treated as separate ACCA predicates. 

Abbott relies on the holding in Willoughby to argue to the contrary.

Willoughby, however, is factually distinguishable. In Willoughby, the defendant had

been previously convicted of selling drugs to an undercover officer, then seconds

later, to a confidential informant working with the officer. 653 F.3d at 740–41. Thus,

we found that these sales could not be counted as separate ACCA predicates because

the sales occurred "almost simultaneously, and thus the offenses were temporally

proximate." Id. at 744; see also United States v. Petty, 828 F.2d 2, 3 (8th Cir. 1987)

(per curiam) (holding that six convictions for robbery committed by simultaneously

robbing six people in a restaurant could not be counted as separate offenses for

ACCA purposes). In Abbott's case, there is no simultaneity as in Willoughby and

Petty. Abbott's drug sales on different days have a sufficient temporal disconnect to

be counted as separate ACCA predicates. We also reject Abbott's argument that two

counts prosecuted under the same criminal case cannot be counted asseparate ACCA

predicates. See Rodriguez v. United States, 17 F.3d 225, 226 (8th Cir. 1994) (per

-4-
curiam) ("Section 924(e) does not require separate prosecutions; it is sufficient that

the offenses occurred at different times." (citations omitted)).2

III. Conclusion

For the reasons stated herein, we affirm.

______________________________

Abbott also argues that under the other factors in Willoughby—namely the

2

physical distance between two crimes' occurrence and their lack of overall substantive

continuity—his June 8 and 9, 2004 drug offenses should not be considered separate

ACCA predicates. While we do consider such factors, the government need only

demonstrate sufficient temporal separateness to count two crimes as separate ACCA

predicates. See Willoughby, 653 F.3d at 743. 

-5-