U.S. v. Willoughby

Decision Date06 September 2011
Docket NumberNo. 10–3792.,10–3792.
Citation653 F.3d 738
PartiesUNITED STATES of America, Appellee,v.Michael WILLOUGHBY, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

OPINION TEXT STARTS HERE

Michelle Nahon Moulder, Asst. Fed. Public Defender, Springfield, MO, argued (Raymond C. Conrad, Jr., Fed. Public Defender, Kansas City, MO, on the brief), for appellant.James J. Kelleher, Asst. U.S. Atty., Springfield, Mo, argued (Beth Phillips, U.S. Atty., Kansas City, MO, on the brief), for appellee.Before RILEY, Chief Judge, SMITH, Circuit Judge, and STROM,1 District Judge.SMITH, Circuit Judge.

Michael Willoughby pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Over Willoughby's objection, the presentence investigation report (PSR) recommended that Willoughby be designated an “armed career criminal” under the Armed Career Criminals Act (ACCA), 18 U.S.C. § 924(e)(1), based, in part, on his two prior Missouri convictions stemming from an incident in which he sold drugs to two individuals nearly simultaneously. Willoughby maintained that these two convictions were for offenses not sufficiently separate and distinct to render them committed “on occasions different from one another” as the ACCA requires. The district court agreed with the PSR's recommendation, designated Willoughby an armed career criminal, and sentenced him to the ACCA's mandatory minimum sentence of 15 years' imprisonment. Willoughby appeals, and, for the reasons that follow, we reverse and remand for resentencing.

I. Background

On June 22, 2010, a federal grand jury in Springfield, Missouri, returned a one-count indictment charging Willoughby with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Initially, Willoughby pleaded not guilty to the indictment, but he subsequently changed his plea to guilty.

The PSR prepared in advance of his sentencing recommended that Willoughby be classified as an armed career criminal, pursuant to the ACCA. If designated an armed career criminal, Willoughby would be subject to a mandatory minimum punishment of 15 years' imprisonment. Willoughby objected to this finding by the PSR, specifically challenging whether his selling marijuana to two different people during one drug deal constituted two offenses that were committed on different occasions as the ACCA requires.

In their respective briefs, both the government and Willoughby recite the charging information filed in Greene County, Missouri Circuit Court and Officer Robert C. McPhail's accompanying “Affidavit in Support of Complaint” as accurate sources for the underlying facts. Officer McPhail's affidavit describes the drug deal, in pertinent part, as follows:

On 1–20–99[,] I was contacted by a C/I [ (confidential informant) ] who is registered with the Springfield Police Department Narcotics unit as a confidential informant. The C/I said a subject known as “Beast” had marijuana and he was willing to sell to him/her. The C/I said he could introduce me to “Beast” and I could by [sic] marijuana from him....

Before contacting the C/I[,] I photocopied $75 of funds issued to me by the police department.... I prepared and wore a hidden body wire for the transaction. Officer Kirk Manlove took the receiver with a cassette tape in his city[-]issued vehicle and monitored the transaction. Officer Brandon Bridgeforth assisted and went with Officer Manlove.

I contacted the C/I and checked to make sure he/she had no money, illegal drugs[,] or contraband in his/her possession. We rode in my city[-]issued vehicle to 221 N. Broadway. Before entering the house[,] I gave the C/I $25 of the $75 that I photocopied.

The C/I knocked on the door and received permission for us to enter the house. Michael Willoughby was sitting in a chair in the northeast corner of the living room. He was wearing a shoulder holster. The straps that hold the holster on the body wore [sic] green. The holster was camouflage. The holster held what appeared to be a semiautomatic handgun. It was black in color and I saw a magazine in the butt of the handgrip. Willoughby was wearing a tan/off white t-shirt and blue jeans. He was also wearing red suspenders hanging down by his legs. These are commonly referred to as [“]braces[”] by Neonazi/skinhead groups.

Willoughby asked the C/I what was up. The C/I asked Willoughby if he still did business. Willoughby said yes. The C/I said he wanted to purchase an “eighth” and I wanted to purchase a “quarter.” Willoughby picked up a plastic box from the left side of the chair and walked to a room in the back of the house.... The C/I and I waited in the living room for a few minutes until Willoughby returned.

When Willoughby returned to the living room he had two sandwich bags containing a green leafy substance in his hand. He started to give both to the C/I. I held out my left hand. Willoughby gave one to the C/I then gave one to me. The C/I gave Willoughby the $25 I gave him. I gave Willoughby $50. I smelled the contents of the bag Willoughby gave me. It smelled and looked like marijuana. We immediately left the house. Willoughby wore the shoulder holster with [the] gun during the entire transaction.

After leaving the house the C/I gave me the sandwich bag of green leafy substance. I checked him/her again for any contraband before he/she left my city issued vehicle.

Subsequently, the State of Missouri charged Willoughby in a two-count information, one count for Willoughby's sale to the confidential informant and one count for Willoughby's sale to Officer McPhail. A jury convicted Willoughby on each count. In turn, based on these undisputed facts, the district court designated Willoughby an armed career criminal under the ACCA and sentenced him accordingly to the ACCA's mandatory minimum sentence of 15 years' imprisonment.

II. Discussion

On appeal, Willoughby maintains that the district court erred in counting, for ACCA purposes, his sale of marijuana to Officer McPhail and the confidential informant as two drug offenses committed on different occasions. In response, the government argues that the district court properly labeled Willoughby an armed career criminal subject to the ACCA's mandatory minimum sentence of 15 years' imprisonment. Specifically, the government contends that “there were two different amounts of marijuana sold to two separate purchasers, which resulted in Willoughby being charged with two different crimes.” The government asserts that [t]his Court has repeatedly rejected arguments similar to Willoughby's, finding them to have ‘no merit, for it is the criminal episodes underlying the convictions ... that must be distinct to trigger the provisions of the ACCA.’ (Quoting United States v. Speakman, 330 F.3d 1080, 1082 (8th Cir.2003).)

We review de novo the district court's determination of whether Willoughby's criminal record qualified him as an Armed Career Criminal. United States v. Gordon, 557 F.3d 623, 624 (8th Cir.2009). As we have explained,

Congress passed the ACCA to protect the public from continuing crimes by armed felons. See generally H.R.Rep. No. 98–1073, at 1–3, 1984 U.S.C.C.A.N. 3661 (1984). It provides a minimum sentence of fifteen years if a defendant qualifies as an armed career criminal. 18 U.S.C. § 924(e). This classification applies to a defendant convicted of being a felon in possession of a weapon or ammunition who has “three previous convictions by any court ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another. § 924(e)(1).

United States v. Deroo, 304 F.3d 824, 828 (8th Cir.2002) (emphasis added). As the government alludes to in its brief, [t]o qualify as predicate offenses under the statute, each conviction must be a separate and distinct criminal episode, rather than part of a continuous course of conduct.” Id. (citing United States v. Hamell, 3 F.3d 1187, 1191 (8th Cir.1993)).

Here, the record belies the government's argument that Willoughby's sale to the officer and, seconds later, to the confidential informant, constitute “separate and distinct criminal episodes” but instead confirms that the sale was, in actuality, one “continuous course of conduct.” Id. As an initial matter, we recognize “that the status of the law in the [Eighth] [C]ircuit is that a single charging document containing separate underlying counts may serve as the basis for separate convictions when considering whether the offenses constitute serious drug offenses for purposes of armed career offender consideration.” United States v. Keith, 638 F.3d 851, 853 (8th Cir.2011) (quotations omitted). Relatedly, “criminal episodes underlying convictions trigger application of the ACCA, not the date of the convictions or the number of trials or pleas resulting in those convictions.” United States v. Ross, 569 F.3d 821, 823 (8th Cir.2009) (internal quotations and citation omitted). Moreover, [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. Van, 543 F.3d 963, 966 (8th Cir.2008) (emphasis added).

However, we have never held two convictions to be sufficiently separate and distinct to serve as predicate ACCA convictions where, as here, those convictions were for drug offenses that the defendant committed, in essence, simultaneously. Indeed, in Van, perhaps our most factually similar case to Willoughby's, we declined to consider whether two drug sales consummated thirty minutes apart from each other “should be counted as one or two predicate offenses,” opting instead to affirm the district court's ACCA enhancement by relying on the defendant's three remaining convictions that were clearly separate and distinct from each other. 543 F.3d at 966; accord United States v. Tate, 633 F.3d 624, 632 n. 5 (8th Cir.2011) (noting that the Van court “did not decide...

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