United States v. Anderson, No. 18-1548

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
PartiesUNITED STATES OF AMERICA, Plaintiff-Appellee, v. JASON L. ANDERSON, Defendant-Appellant.
Docket NumberNo. 18-1548
Decision Date21 March 2019

JASON L. ANDERSON, Defendant-Appellant.

No. 18-1548

United States Court of Appeals For the Seventh Circuit

Argued February 27, 2019
March 21, 2019

To be cited only in accordance with Fed.
R. App. P. 32.1

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

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.


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

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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.


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

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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 Anderson's most serious point: whether the conduct underlying his two Indiana convictions occurred on separate occasions. This is a question of federal law, and so our review is de novo. United States v. Elliott, 703 F.3d 378, 381 (7th Cir. 2012). In evaluating this argument, we may consult only the documents approved by Shepard v. United States, 544 U.S. 13, 26 (2005). These are the "conclusive records made or used in adjudicating guilt," such as "charging documents, plea agreements, [and] findings of fact resulting from a bench trial." Elliott, 703 F.3d at 382 (internal quotations omitted). The burden is on the government to prove that the offenses occurred on separate occasions. Kirkland v. United States, 687 F.3d 878, 889 (7th Cir. 2012). If the Shepard documents are "equivocal as to whether the offenses occurred on the same occasion, the ACCA does not apply." Id.

Whether the crimes were simultaneous or separate depends on whether Anderson had the chance to "terminate his wrongdoing." Elliott, 703 F.3d at 383. This, in turn, depends upon the people involved and the nature, timing, and location of the crimes. Id. In United States v. Cardenas, 217 F.3d 491 (7th Cir. 2000), for instance, we found that two drug sales to the same buyer on the same day, just 45 minutes apart, and on the same block, were separate events and thus were distinct criminal episodes, because the seller had the chance to refrain from the second sale. Id. at 492. In so holding, we followed the rule announced in United States v. Hudspeth, 42 F.3d 1015 (7th Cir. 1994), which held that separate criminal incidents exist if, "within a short period of time, ... the perpetrator had the opportunity to cease and desist from his criminal actions." Id. at 1020. Crimes that overlap temporally or circumstances in which there is no way to change course would be different. Thus, in United States v. Willoughby, 653 F.3d 738 (8th Cir. 2011), the Eighth Circuit held that sales of drugs just seconds apart to a single buyer were properly viewed as one continuous course of conduct. Id. at 744-45.

Anderson urges us to hold that his case falls within the narrow exception recognized by Willoughby, but the record is against him. At the plea hearing in the state court, the following colloquy took place:

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THE COURT: Mr. Anderson, the Charging Information indicates that on September 21st, of the year 2000, you were in possession of cocaine—no, you sold cocaine; is that correct?


THE COURT: That also on the 22nd day of September—22nd day of September of the year 2000, you sold cocaine and it weighted [sic] more than 3 grams, correct?


Based on that guilty plea, the state court imposed concurrent sentences of 10 years on Count I (relating to the September 21 sale) and 20 years on Count II (relating to the September 22 sale). Without this record, we might be more willing to entertain Anderson's supposition that his September 21 sale occurred at 11:59 pm, and his September 22 sale occurred at 12:01 am, just two minutes later. But there is nothing but wishful thinking to support that scenario. Surely, if the sales had been two minutes apart, the defendant would have said something to the state judge. Moreover, as the government has argued here, Indiana law...

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