1 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 11

- 3950

_____________ UNITED STATES OF AMERICA

v. PAUL SEAN JONES,

Appellant

_ ___________ O n Appeal from the United States District Court for the Ea stern District of Pennsylvania District Court No. 5

- 10

- cr - 00475

- 001 District Judge: The Honorable James Knoll Gardner
Submitted Pursuant to Third Circuit L.A.R. 34.1(a )

March 2 2 , 2013 Before: M c KEE, Chief Judge, SMITH, and GREENAWAY, JR., Circuit Judges
(Filed: April 4, 2013)

_____________________ OPINION

_____________________ SMITH, Circuit Judge. Paul Sean Jones pleaded gui lty pursuant to a written plea agreement to being2

a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The plea

a greement contained a provision en suring that Jones would be able to challenge at sentencing the applicability of the Armed Career Criminal Act (ACCA) and the mandatory minimum sentence of fifteen years. The plea agreement also contained a broad appellate waiver of his right to file either a direct appeal or to seek
collateral relief. During the guilty plea colloquy, the Uni ted States District Court for the Eastern District of Pennsylvania explained at length the difference between entering an open gui lty plea to the offense charged and pleading guilty pursuant to a written plea agreement containing an appellate waiver. Jone s decided to sign the plea agreement with its appellate waiver and enter ed his guilty plea. The District Court accepted Jones‟ s guilty plea

. Thereafter, the presentence report prepared by probation determined that Jones had three previous controlled sub stance convictions and thereby qualified as an armed career criminal. As a result, the mandatory minimum sentence of fifteen years applied. See 18 U.S.C. § § 922(g)(1), 924(e)

. Jones objected, arguing that two of the predicate offenses were disposed of in the same judicial proceeding and that he had received concurrent sentences. As a result, Jones asserted that he did not have the requisite number of predicate convictions required for the fifteen year mandatory minimum

. The government3

did not dispute that two of his convictions were resolved at the same time or that his sentences were concurrent. Nonetheless, it asserted that each of t he two conviction s qualified as a predicate conviction under § 924(e) because the convictions were based on conduct th at occurred nine days apart

. The District Court agreed and sentenced Jones to the mandatory minimum fifteen year
sentence . This timely appeal followed. 1 Jones challenges the District Court‟s determination that he qualified as an
armed career criminal. I n addition, he asserts , for the first time, that the mandatory minimum sentence of fifteen years is grossly disproportionate to the offense of conviction and thereby constitutes cruel and unusual punishment in violation of the Eighth Amendment to the Const itution

. In responding to Jones‟s challenge to his armed career criminal status, t he government did n ot invoke the appellate waiver. Nonetheless, it contends that the District Court‟s ruling was not erroneous. Whether a conviction qualifies as a
contr olled substance offense for purposes of the ACCA is a legal determination subject to plenary review. United States v. Trala , 386 F.3d 536, 547 n.15 (3d Cir. 2004) vacated on other grounds by Trala v. United States , 546 U.S. 1086 (2006)

. T he sentencing e nhancement in the ACCA, 18 U.S.C. § 92 4(e), specifie s

1 The District Court exercised jurisdiction under 18 U.S.C. § 3231. W e exercise final order jurisdi ction under 28 U.S.C. § 1291 and 18 U.S.C. §3742(a).4

that if the person who violates §922(g) has three previous convictions for a serious drug offense “c ommitted on occasions different from one another,” then a sentence of “not less than fifteen years” mu st be imposed. Jones contends that he does not have the requisite three convictions. We disagree.
In United States v. Schoolcraft , 879 F.2d 64, 73

- 74 (3d Cir. 1989), we
concluded that th e predicate offenses must arise from separate criminal episodes.
T his “separate episode [ s ] ” test focuses on the circumstances to determine if the offenses were distinguishable from one another. Id. at 73 (citing cases involving crimes committed at distinct times, in different places, and affecting different victims) ; se e also United States v. Cardenas , 217 F.3d 491 , 492 (7th Cir. 2000) (noting that , in deciding whether a defendant has the requisite predicate convictions under the ACCA, the sentencing court should “„ look to the nature of the crime, the identities of the v ictims, and the locations, ‟ ” a s well as whether the re

was an opportunity to stop engaging in the criminal activity) ( quot ing United States v. Hudspeth , 42 F.3d 1015, 1019 (7th Cir. 1994) (en banc) , abrogated on other grounds by Shepard v. United States , 54 4 U.S. 13 (2005) ). Here, the two predicate convictions f

or distributing cocaine , though disposed of in the same judicial proceedings and the subject of concurrent sentences, occurred nine days apart. This establishes that the convictions were separate an d distinct. Schoolcraft , 879 F.2d at 73

- 74 (agreeing with other federal courts of appe als that the episodes5

approach “ simply require[s] that the crimin al episodes be distinct in time” ) (quoting United States v. Towne , 870 F.2d 880, 889

- 90 (2d Cir. 1989) ( internal quotation marks omitted)). Accordingly, we conclude that the District Court did not err by imposing the mandatory minimum fifteen year sentence set forth in the
ACCA. Jones‟ s assertion that his sentence violates the C ruel and U nusual
P unishment C lause of the Eighth Amendment is not an issue excepted by the terms of the broad appellate waiver. The government has invoked the waiver on this issue and contends that it should be enforced. 2 After review of the record, we
conclude that the waiver was knowing and voluntary

. Because r especting the terms of this knowing and voluntary appellate waiver will not result in a miscarriage of justice , we conclude that the waiver is enforceable with respect to Jones‟ s Eighth Amendment claim and we decline to ad dress it. United States v. Khattak , 273 F.3d 557, 563 (3d Cir. 2001). For the reasons set forth above, we will affirm the judgment of the District
Court.

2 The government‟s decision not to invoke the appellate waiver with respect to the applicability of the ACCA does not render the appellate waiver in operative with respect to other issue s within its scop e. See United States v. Castro , 704 F.3d 125, 141

- 42 (3d Cir. 2013) (concluding that , even though knowing and voluntary appellate waiver was unenforceable with respect to one issue because it would result in a miscarriage of justice, the appellate waiver remained enforceable as to a seco nd issue ).