U.S. v. Willoughby, No. 10–3792.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: SMITH, Circuit Judge.
• Citation: 653 F.3d 738
• Parties: UNITED STATES of America, Appellee,v.Michael WILLOUGHBY, Appellant.
• Decision Date: 06 September 2011
• Docket Number: No. 10–3792.

653 F.3d 738

UNITED STATES of America, Appellee,
v.
Michael WILLOUGHBY, Appellant.

No. 10–3792.

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2011.Filed: Sept. 6, 2011.

[653 F.3d 739]

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

[653 F.3d 740]

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

[653 F.3d 741]

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...