NOT RECOMMENDED FOR PUBLICATION File Name: 23a0277n.06
No. 22-5603
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 15, 2023 UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ON APPEAL FROM THE UNITED v. STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE CALVIN COGDILL, Defendant-Appellant. OPINION
Before: CLAY, GRIFFIN, and DAVIS, Circuit Judges.
CLAY, Circuit Judge. Defendant Calvin Cogdill pleaded guilty to being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Based on Cogdill’s
three prior drug-trafficking convictions, the district court sentenced Cogdill to a fifteen-year
mandatory-minimum sentence under the Armed Career Criminal Act. Cogdill appeals this
sentence, arguing that the district court erred in concluding that two of his prior drug-trafficking
offenses occurred on different “occasions.” For the reasons that follow, we AFFIRM the district
court’s judgment.
BACKGROUND
Cogdill pleaded guilty to being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. § 922(g)(1). At the time Cogdill committed the offense, the offense carried
a maximum penalty of ten years’ imprisonment. See 18 U.S.C. § 924(a)(2) (2018) (amended
2022). No. 22-5603, United States v. Cogdill
Relevant to Cogdill’s sentencing, Cogdill had three prior drug-trafficking convictions: (1)
a Georgia conviction for manufacturing methamphetamine, committed on December 18, 2003; (2)
a Tennessee conviction for selling methamphetamine with co-defendant Jason Johns, committed
on June 12, 2014; and (3) a Tennessee conviction for possessing methamphetamine with intent to
sell or deliver, committed on September 15, 2014.
Based on these three drug-trafficking offenses, the presentence investigation report
determined that the Armed Career Criminal Act’s (“ACCA”) fifteen-year mandatory minimum
sentence applied. See 18 U.S.C. § 924(e)(1). Cogdill objected to the presentence investigation
report on the ground that the two Tennessee drug-trafficking convictions did not occur on different
“occasions” and therefore did not trigger the ACCA’s mandatory minimum sentence. See id. In
the alternative, Cogdill objected that the Fifth and Sixth Amendments to the Constitution bar a
sentencing judge from finding the facts needed to satisfy the occasions-different clause.
The district court overruled Cogdill’s objections and determined that the ACCA applied.
The district court sentenced Cogdill to 180 months’ imprisonment.
DISCUSSION
On appeal, Cogdill argues that his Tennessee drug-trafficking offenses do not trigger the
ACCA because they did not occur on “occasions different from one another.” See 18 U.S.C.
§ 924(e)(1). In the alternative, Cogdill argues that the Constitution bars the district court from
finding the facts needed to make the occasions-different inquiry. We review both questions of law
de novo. United States v. Williams, 39 F.4th 342, 344 (6th Cir. 2022) (“We review de novo
whether [a defendant’s] previous convictions qualify as predicate offenses under the ACCA.”);
United States v. King, 853 F.3d 267, 270 (6th Cir. 2017) (“We review de novo the issue of what
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evidence a court may rely on when deciding whether prior offenses were ‘committed on occasions
different from one another’ as that phrase is used in the ACCA.”).
I.
The ACCA’s mandatory minimum applies to a person who violates 18 U.S.C. § 922(g) and
has “three previous convictions . . . for a serious drug offense . . . committed on occasions different
from one another.” 18 U.S.C. § 924(e)(1). Cogdill does not dispute that he has three previous
convictions for serious drug offenses. Rather, Cogdill contends that the convictions based on the
two Tennessee drug-trafficking offenses qualify as only one ACCA predicate offense because they
were not committed on different occasions.
The Supreme Court addressed the issue of when the offenses underlying previous
convictions were committed on the same “occasion” in Wooden v. United States, 142 S. Ct. 1063,
1069 (2022). In one evening, Wooden burglarized ten units in a storage facility, proceeding from
unit to unit by crushing the interior walls between them. Id. at 1067. The Supreme Court held that
these burglaries occurred on one occasion, not ten separate occasions. Id. at 1069. The Court
defined an occasion as a single “event, occurrence, happening, or episode,” and explained that
determining whether offenses occurred on separate occasions is a “multi-factored” inquiry. Id. at
1069–70. Relevant factors include timing, proximity of location, and “the character and
relationship of the offenses.” Id. at 1071. To determine whether Cogdill’s Tennessee offenses
occurred on different occasions, we apply the factors from Wooden.
“Offenses committed close in time, in an uninterrupted course of conduct, will often count
as part of one occasion; not so offenses separated by substantial gaps in time or significant
intervening events.” Id. Cogdill’s two Tennessee drug offenses occurred on two different dates,
separated by more than three months: June 12, 2014, and September 15, 2014. We have held that
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significantly smaller time gaps between offenses supported the conclusion that the offenses
occurred on different occasions. See Williams, 39 F.4th at 344, 350 (holding that four robberies
occurred on four separate occasions because the robberies were each separated by at least six days);
United States v. Miles, 2022 U.S. App. LEXIS 11214, at *4֪–5 (6th Cir. Apr. 25, 2022) (order)
(holding that three illicit drug transactions on three different days over the span of 23 days
constituted three ACCA predicate offenses because the offenses were separated by substantial gaps
in time). Accordingly, this factor weighs in favor of a conclusion that the offenses occurred on
separate occasions.
As to proximity, “the further away crimes take place, the less likely they are components
of the same criminal event.” Wooden, 142 S. Ct. at 1071. In this case, the record shows that the
Tennessee drug offenses both occurred in Bradley County, Tennessee. Because the exact locations
are unknown, Cogdill argues that they could have been committed in the same location. The
district court correctly determined that it could make no finding on this factor.
As for the character of the offenses, “[t]he more similar or intertwined the conduct giving
rise to the offenses—the more, for example, they share a common scheme or purpose—the more
apt they are to compose one occasion.” Id. Cogdill argues that the Tennessee offenses shared a
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NOT RECOMMENDED FOR PUBLICATION File Name: 23a0277n.06
No. 22-5603
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 15, 2023 UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ON APPEAL FROM THE UNITED v. STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE CALVIN COGDILL, Defendant-Appellant. OPINION
Before: CLAY, GRIFFIN, and DAVIS, Circuit Judges.
CLAY, Circuit Judge. Defendant Calvin Cogdill pleaded guilty to being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Based on Cogdill’s
three prior drug-trafficking convictions, the district court sentenced Cogdill to a fifteen-year
mandatory-minimum sentence under the Armed Career Criminal Act. Cogdill appeals this
sentence, arguing that the district court erred in concluding that two of his prior drug-trafficking
offenses occurred on different “occasions.” For the reasons that follow, we AFFIRM the district
court’s judgment.
BACKGROUND
Cogdill pleaded guilty to being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. § 922(g)(1). At the time Cogdill committed the offense, the offense carried
a maximum penalty of ten years’ imprisonment. See 18 U.S.C. § 924(a)(2) (2018) (amended
2022). No. 22-5603, United States v. Cogdill
Relevant to Cogdill’s sentencing, Cogdill had three prior drug-trafficking convictions: (1)
a Georgia conviction for manufacturing methamphetamine, committed on December 18, 2003; (2)
a Tennessee conviction for selling methamphetamine with co-defendant Jason Johns, committed
on June 12, 2014; and (3) a Tennessee conviction for possessing methamphetamine with intent to
sell or deliver, committed on September 15, 2014.
Based on these three drug-trafficking offenses, the presentence investigation report
determined that the Armed Career Criminal Act’s (“ACCA”) fifteen-year mandatory minimum
sentence applied. See 18 U.S.C. § 924(e)(1). Cogdill objected to the presentence investigation
report on the ground that the two Tennessee drug-trafficking convictions did not occur on different
“occasions” and therefore did not trigger the ACCA’s mandatory minimum sentence. See id. In
the alternative, Cogdill objected that the Fifth and Sixth Amendments to the Constitution bar a
sentencing judge from finding the facts needed to satisfy the occasions-different clause.
The district court overruled Cogdill’s objections and determined that the ACCA applied.
The district court sentenced Cogdill to 180 months’ imprisonment.
DISCUSSION
On appeal, Cogdill argues that his Tennessee drug-trafficking offenses do not trigger the
ACCA because they did not occur on “occasions different from one another.” See 18 U.S.C.
§ 924(e)(1). In the alternative, Cogdill argues that the Constitution bars the district court from
finding the facts needed to make the occasions-different inquiry. We review both questions of law
de novo. United States v. Williams, 39 F.4th 342, 344 (6th Cir. 2022) (“We review de novo
whether [a defendant’s] previous convictions qualify as predicate offenses under the ACCA.”);
United States v. King, 853 F.3d 267, 270 (6th Cir. 2017) (“We review de novo the issue of what
-2- No. 22-5603, United States v. Cogdill
evidence a court may rely on when deciding whether prior offenses were ‘committed on occasions
different from one another’ as that phrase is used in the ACCA.”).
I.
The ACCA’s mandatory minimum applies to a person who violates 18 U.S.C. § 922(g) and
has “three previous convictions . . . for a serious drug offense . . . committed on occasions different
from one another.” 18 U.S.C. § 924(e)(1). Cogdill does not dispute that he has three previous
convictions for serious drug offenses. Rather, Cogdill contends that the convictions based on the
two Tennessee drug-trafficking offenses qualify as only one ACCA predicate offense because they
were not committed on different occasions.
The Supreme Court addressed the issue of when the offenses underlying previous
convictions were committed on the same “occasion” in Wooden v. United States, 142 S. Ct. 1063,
1069 (2022). In one evening, Wooden burglarized ten units in a storage facility, proceeding from
unit to unit by crushing the interior walls between them. Id. at 1067. The Supreme Court held that
these burglaries occurred on one occasion, not ten separate occasions. Id. at 1069. The Court
defined an occasion as a single “event, occurrence, happening, or episode,” and explained that
determining whether offenses occurred on separate occasions is a “multi-factored” inquiry. Id. at
1069–70. Relevant factors include timing, proximity of location, and “the character and
relationship of the offenses.” Id. at 1071. To determine whether Cogdill’s Tennessee offenses
occurred on different occasions, we apply the factors from Wooden.
“Offenses committed close in time, in an uninterrupted course of conduct, will often count
as part of one occasion; not so offenses separated by substantial gaps in time or significant
intervening events.” Id. Cogdill’s two Tennessee drug offenses occurred on two different dates,
separated by more than three months: June 12, 2014, and September 15, 2014. We have held that
-3- No. 22-5603, United States v. Cogdill
significantly smaller time gaps between offenses supported the conclusion that the offenses
occurred on different occasions. See Williams, 39 F.4th at 344, 350 (holding that four robberies
occurred on four separate occasions because the robberies were each separated by at least six days);
United States v. Miles, 2022 U.S. App. LEXIS 11214, at *4֪–5 (6th Cir. Apr. 25, 2022) (order)
(holding that three illicit drug transactions on three different days over the span of 23 days
constituted three ACCA predicate offenses because the offenses were separated by substantial gaps
in time). Accordingly, this factor weighs in favor of a conclusion that the offenses occurred on
separate occasions.
As to proximity, “the further away crimes take place, the less likely they are components
of the same criminal event.” Wooden, 142 S. Ct. at 1071. In this case, the record shows that the
Tennessee drug offenses both occurred in Bradley County, Tennessee. Because the exact locations
are unknown, Cogdill argues that they could have been committed in the same location. The
district court correctly determined that it could make no finding on this factor.
As for the character of the offenses, “[t]he more similar or intertwined the conduct giving
rise to the offenses—the more, for example, they share a common scheme or purpose—the more
apt they are to compose one occasion.” Id. Cogdill argues that the Tennessee offenses shared a
“common purpose” of trafficking in methamphetamine. In support, Cogdill contends that these
offenses meet the test for “relevant conduct” under the sentencing guidelines. See U.S.S.G. §
1B1.3(a)(2). But the inquiry under the sentencing guidelines is distinct from the inquiry under
Wooden. Compare U.S.S.G. § 1B1.3 comment. (n.5(B)(ii)) (noting that offenses may be “relevant
conduct” if they are “part of a single episode, spree, or ongoing series of offenses”), with Wooden,
142 S. Ct. at 1069 (defining an “occasion” to mean an “event, occurrence, happening, or episode”).
While Cogdill’s Tennessee offenses both involved the trafficking of methamphetamine, they do
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not share a common scheme in the same way as in Wooden, wherein the defendant serially
burglarized each storage unit in the exact same manner. We have held that drug transactions
similar to the two at issue in this case may constitute multiple ACCA predicate offenses when
separated by substantial gaps in time. See Miles, 2022 U.S. App. LEXIS 11214, at *4֪–5 (holding
that two counts of first-degree trafficking in a controlled substance involving two sales of
oxycodone tablets to the same cooperating witness, fourteen days apart, constituted two ACCA
predicate offenses). Therefore, this factor weighs in favor of a conclusion that the offenses
occurred on separate occasions.
The Supreme Court has explained that “[i]n many cases, a single factor—especially of time
or place—can decisively differentiate occasions.” Wooden, 142 S. Ct. at 1071. “Courts, for
instance, have nearly always treated offenses as occurring on separate occasions if a person
committed them a day or more apart.” Id. Given the substantial gap in time between Cogdill’s
Tennessee drug offenses and the distinct conduct underlying the offenses, the offenses were
committed on different occasions under the ACCA.
Resisting this conclusion, Cogdill looks to legislative history to claim that ACCA’s
enhancement was only meant to apply to “recidivists,” and argues that the lack of an arrest or other
significant intervening event between the Tennessee offenses supports a finding that the two
offenses did not occur on different occasions. However, the occasions-different clause does not
reference either recidivism or criminal-justice-system intervention. See 18 U.S.C. § 924(e)(1).
Nor does Wooden’s “multi-factor” test include intervening arrests. Rather, Wooden directs courts
to determine whether the convictions satisfy the ordinary meaning of a single “occasion” by
looking to facts underlying the convictions like location, timing, and whether the offenses were
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intertwined. Wooden, 142 S. Ct. at 1070–71. We cannot add a requirement to the statute based
on legislative history.
II.
In the alternative, Cogdill argues that the Constitution bars the district court from finding
the facts needed to conduct the occasions-different inquiry.
Under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), a judge may find the “fact of a
prior conviction,” but all other “fact[s] that increase[] the penalty for a crime beyond the prescribed
statutory maximum” must be included in the indictment and proved to a jury beyond a reasonable
doubt. Cogdill argues that the factual findings necessary to the occasions-different inquiry fall
under the Apprendi general rule, and therefore may only be found by a jury, and not by the
sentencing judge.
Cogdill acknowledges, however, that circuit precedent forecloses the argument. We have
previously held that the facts governing the occasions-different inquiry are included in “the fact of
a prior conviction,” so they come within the Apprendi exception. United States v. Burgin, 388
F.3d 177, 186 (6th Cir. 2004). We have since reaffirmed this rule. Williams, 39 F.4th at 351; see
also United States v. Belcher, 40 F.4th 430, 432 (6th Cir. 2022); United States v. Jackson, No. 22-
5185, 2023 WL 2446139, at *2 (6th Cir. Mar. 10, 2023); United States v. Hunley, No. 20-6285,
2023 WL 2446762, at *3 (6th Cir. Mar. 10, 2023); United States v. Lovell, No. 20-6287, 2023 WL
1879530, at *3 (6th Cir. Feb. 10, 2023). The district court correctly applied this settled rule.
Cogdill challenges this precedent by arguing that those cases either came before or
overlooked two Supreme Court cases that make clear that the occasions-different inquiry is for the
jury: United States v. Hayes, 555 U.S. 415 (2009), and Nijhawan v. Holder, 557 U.S. 29 (2009).
A panel may overrule a prior binding precedent if the “precedent overlooked earlier Supreme Court
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authority.” Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686, 720 (6th Cir. 2016).
However, the cases Cogdill identifies provide no authority to revisit our binding precedent because
neither case involved the ACCA or the occasions-different inquiry. See United States v. Cook,
No. 22-5056, 2022 WL 4684595, at *2 (6th Cir. Oct. 3, 2022). Nor does Wooden alter this
precedent. See Wooden, 142 S. Ct. at 1068 n.3 (declining to address whether the Sixth Amendment
requires that a jury, rather than a judge, resolve whether prior crimes occurred on a single
occasion).
CONCLUSION
For the reasons stated above, we AFFIRM the district court’s judgment.
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