766 Fed.Appx. 377 (7th Cir. 2019), 18-1548, United States v. Anderson

Docket Nº:18-1548
Citation:766 Fed.Appx. 377
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jason L. ANDERSON, Defendant-Appellant.
Attorney:David E. Hollar, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, Colleen McNichols Ramais, Attorney, Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant
Judge Panel:Before DIANE P. WOOD, Chief Judge, WILLIAM J. BAUER, Circuit Judge, ILANA DIAMOND ROVNER, Circuit Judge
Case Date:March 21, 2019
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 377

766 Fed.Appx. 377 (7th Cir. 2019)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jason L. ANDERSON, Defendant-Appellant.

No. 18-1548

United States Court of Appeals, Seventh Circuit

March 21, 2019

Argued February 27, 2019

Editorial Note:

NONPRECEDENTIAL DISPOSITION. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:17CR63-001, Robert L. Miller, Jr., Judge .

David E. Hollar, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee

Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, Colleen McNichols Ramais, Attorney, Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant

Before DIANE P. WOOD, Chief Judge, WILLIAM J. BAUER, Circuit Judge, ILANA DIAMOND ROVNER, Circuit Judge

Page 378

ORDER

Jason Anderson pleaded guilty to possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). The district court determined that Anderson qualified as an Armed Career Criminal based on three prior cocaine-dealing convictions, and so it imposed the minimum sentence of 15 years’ imprisonment. See id. § 924(e)(1). Anderson offers three reasons why he should not have been designated an armed career criminal. First, two of his three convictions occurred close in time and therefore (he says) they count as only one predicate offense under ACCA. Second, he postulates that the statute underlying those two convictions is broader than ACCA’s definition of a "serious drug offense," and so neither one is a predicate offense. Third, he contends that because none of three convictions was proven to a jury, none may count as a predicate offense. These arguments do not persuade us, and so we affirm the district court’s judgment.

I

The procedural history of this case is straightforward. While Anderson, a felon, was detained on drug charges, police recovered guns at his home. He later pleaded guilty to illegal firearm possession under 18 U.S.C. § 922(g)(1). The government sought an enhanced sentence under ACCA based on three previous convictions that, it argued, were "serious drug offense[s]" that Anderson committed "on occasions different from one another." 18 U.S.C. § 924(e)(1). One conviction was for possession with intent to deliver cocaine under Illinois law. See 720 ILCS 570/401(a)(2)(A) (2004). The second and third were for dealing more than three grams of cocaine in violation of IND. CODE § 35-48-4-1(b)(1) (1998). This appeal concerns those last two convictions.

Anderson conceded that his convictions were serious drug offenses under ACCA, but he contended that the two Indiana convictions were just one predicate offense because they had not necessarily occurred on separate occasions, see 18 U.S.C. § 924(e)(1). The operative indictment stated that in 2000 Anderson committed an Indiana felony "on or about" September 22 by dealing cocaine, and that he committed another Indiana felony "on or about" September 21, also by dealing cocaine. The sales were made to the same buyer. Anderson urged that the indictment did not foreclose the possibility that the sales were made on the same occasion. (Anderson also argued that the government should have charged his previous convictions in his indictment and proven them to a jury, but he conceded that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), forecloses this argument at our level.)

The district court ruled that Anderson’s Indiana convictions arose on separate occasions, and thus each was a predicate offense for purposes of ACCA’s sentencing enhancement. The Indiana state prosecutors’ decision to charge Anderson with these two felonies, the court reasoned, would have been "pointless[ ]" if both counts had arisen from the same transaction. That is because under Indiana’s merger-offense doctrine, the state court could not have sentenced Anderson separately for each count if both arose from the same events. The district court accordingly

Page 379

sentenced Anderson to 15 years’ imprisonment, the statutory minimum mandated by ACCA. See 18 U.S.C. § 924(e)(1).

II

On appeal, Anderson continues to argue that he does not have the necessary three predicate offenses for ACCA. He presents three reasons in support of this point: (1) his two Indiana offenses should count as one predicate offense because they did not occur on separate occasions; (2) Indiana’s cocaine-dealing statute criminalizes more conduct than ACCA’s definition of a "serious drug offense" does (a new argument on appeal); and (3) Almendarez-Torres was wrongly decided.

We begin with Andersons most serious...

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