U.S. v. Keith

• Decision Date: 16 May 2011
• Docket Number: No. 10–3005.,10–3005.
• Citation: 638 F.3d 851
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Tramayne D. KEITH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

638 F.3d 851

UNITED STATES of America, Plaintiff–Appellee,

v.Tramayne D. KEITH, Defendant–Appellant.

No. 10–3005.

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2011.Filed: May 16, 2011.

Floyd A. White, Kansas City, MO, for appellant.Jess E. Michaelsen, Asst. U.S. Atty., Kansas City, MO (Beth Phillips, U.S. Atty., on the brief), for appellee.Before RILEY, Chief Judge, BENTON, and SHEPHERD, Circuit Judges.BENTON, Circuit Judge.

Tramayne D. Keith pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e). The district court ¹ sentenced him as an armed career criminal under § 924(e), imposing the mandatory 180 months' imprisonment. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

In his plea agreement, Keith admitted the following prior felony convictions: domestic assault in the second degree, the sale of controlled substances on or about September 16, 1997, and the possession of controlled substances with intent to distribute on or about September 25, 1997. The district court found that these three convictions—which were also summarized in the PSR—qualified as predicate offenses under the armed career criminal statute.

On appeal, Keith argues—as permitted by the plea agreement—that the district court improperly counted these convictions as predicate offenses within the meaning of § 924(e), a legal determination this court reviews de novo. See United States v. Boaz, 558 F.3d 800, 806 (8th Cir.2009).

The Armed Career Criminal Act (ACCA) mandates a fifteen-year sentence for a felon in possession who “has three previous 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). The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year ... that—(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). The ACCA defines “serious drug offense” as “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).

Keith's domestic-assault conviction under Mo.Rev.Stat. § 565.073 qualifies as a violent felony and is a predicate offense under the ACCA. See United States v. Jones, 574 F.3d 546, 550–53 (8th Cir.2009) (holding that domestic-assault convictions under Mo.Rev.Stat. § 563.073 are violent felonies and predicate offenses under the ACCA). Keith argues that the domestic assault is not a predicate violent felony because he served only probation. To the contrary: “As the word ‘punishable’ makes clear, the focus of [the ACCA] definition is on the prison sentence that may be imposed under state law, ‘regardless of the actual sentence imposed.’ ” United States v. Clinkscale, 559 F.3d 815, 817 (8th Cir.2009), quoting U.S.S.G. § 4B1.2 comment. (n.1).

On September 28, 1999, Keith was found guilty and sentenced based on conduct involving controlled substances that occurred on two dates—on or about September 16, 1997, and on or about September 25, 1997. Keith contends that these drug convictions are one predicate offense because they were similar in kind, occurred less than a week apart, and were charged in the same document.

The similarity of the offenses and their temporal proximity are not legally relevant in determining whether they are separate convictions under the ACCA. See United States v. Van, 543 F.3d 963, 966 (8th Cir.2008) ( “[C]onvictions for separate drug transactions on separate days are multiple ACCA predicate offenses, even if the transactions were sales to the same victim or informant.”). Keith further acknowledges that the “status of the law in the 8th circuit is that a single charging...