FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 2, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-6228 (D.C. No. 5:16-CR-00239-HE-1) TIMOTHY EDMUN JOHNSON, (W.D. Okla.) a/k/a Timothy Edmund Johnson,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________
This appeal involves a challenge to a sentencing enhancement under
the Armed Career Criminal Act. The sentence enhancement was applied to
Mr. Timothy Johnson after a conviction for possessing a firearm following
a felony conviction. See 18 U.S.C. § 922(g). The Armed Career Criminal
Act created a minimum sentence of fifteen years if Mr. Johnson had three
* The parties have not requested oral argument, and we conclude that oral argument would not materially aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based on the briefs.
Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). prior 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).
Mr. Johnson had multiple felony convictions in his past. Two of them
were for distributing cocaine base and possessing cocaine base with intent
to distribute. See Okla. Stat. tit. 63, § 2-401(A)(1). Mr. Johnson argues
that these prior offenses
did not qualify as serious drug offenses and
had been committed on the same occasion.
The district court rejected these arguments and sentenced Mr. Johnson to
fifteen years in prison. We affirm.
I. The prior convictions were for serious drug offenses.
Mr. Johnson first contends that the two prior offenses did not
constitute “serious drug offense[s]” under the Armed Career Criminal Act.
Classification as a “serious drug offense” involves statutory interpretation,
which we review de novo. United States v. Trent, 884 F.3d 985, 991 (10th
Cir. 2018).
The parties agree that
the statute of conviction is divisible and
the modified categorical approach applies.
Under the modified categorical approach, we identify the crimes of
conviction and compare the elements of those crimes and their generic 2 counterparts. United States v. Madkins, 866 F.3d 1136, 1145 (10th Cir.
2017).
The Oklahoma crimes were set out in a statute prohibiting
individuals from transporting illicit drugs with the intent to distribute
them. Okla. Stat. tit. 63, § 2-401(A)(1). The federal definition of a “serious
drug offense” is “an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or distribute, a
controlled substance . . . .” 18 U.S.C. § 924(e)(2)(A)(ii).
Mr. Johnson contends that the federal definition of “serious drug
offense” does not encompass the transportation of drugs. We disagree. It is
true that the federal definition does not include the word “transportation.”
But the federal definition does use the term “possessing,” and “the
transportation of drugs necessarily implies their possession.” United States
v. Svacina, 137 F.3d 1179, 1182 n.1 (10th Cir. 1998); see also United
States v. Karam, 496 F.3d 1157, 1167 (10th Cir. 2007) (“Nor can there be
any dispute that . . . [transporting] drugs intended for sale by the defendant
. . . involve[s] possession with intent to distribute . . . .”).
Mr. Johnson relies on United States v. McKibbon, 878 F.3d 967 (10th
Cir. 2017), and United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017).
In these opinions, we applied the sentencing guidelines’ definition of a
controlled-substance offense, holding that this definition did not cover
offers to sell drugs. McKibbon, 878 F.3d at 972-73; Madkins, 866 F.3d at
3 1145, 1147-48. But the Oklahoma statute does not include offers to sell.
This difference matters: Someone can offer to sell drugs without being
guilty of an attempted sale, 1 but it is impossible to transport drugs without
possessing them. McKibbon and Madkins involved statutes of conviction
broader than their guideline counterparts; here, however, the statute of
conviction is not broader than its counterpart in the Armed Career Criminal
Act. In light of this difference, McKibbon and Madkins lack any bearing on
the present issue.
We therefore conclude that
transportation of drugs with intent to distribute is a crime “involving . . . possessing with intent to manufacture or distribute” and
the Oklahoma crime does not extend beyond the federal definition of a “serious drug offense.”
II. Mr. Johnson’s prior convictions were for distinct offenses.
Mr. Johnson also contends that the two prior offenses were
committed on the same occasion. This contention is based on the Armed
Career Criminal Act, which counts prior convictions only if the underlying
crimes were committed on different occasions. 18 U.S.C. § 924(e)(1).
In reviewing this contention, we engage in de novo review. United
States v. Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012). This review
1 See Madkins, 866 F.3d at 1147 (“[B]ecause a person can offer a controlled substance for sale without having the intent to actually complete the sale, a conviction for an offer to sell can be broader than a conviction for an attempt to sell.”). 4 calls for us to consider how the two offenses unfolded. One afternoon, at
about 4:20 p.m., an undercover investigator met with Mr. Johnson and
asked to buy an ounce of crack cocaine. Mr. Johnson did not have an
ounce, but he did have three grams and sold them to the investigator. Mr.
Johnson also told the investigator how much an ounce would cost and
agreed to call when a full ounce became available. The sale of three grams
led to Mr.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 2, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-6228 (D.C. No. 5:16-CR-00239-HE-1) TIMOTHY EDMUN JOHNSON, (W.D. Okla.) a/k/a Timothy Edmund Johnson,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________
This appeal involves a challenge to a sentencing enhancement under
the Armed Career Criminal Act. The sentence enhancement was applied to
Mr. Timothy Johnson after a conviction for possessing a firearm following
a felony conviction. See 18 U.S.C. § 922(g). The Armed Career Criminal
Act created a minimum sentence of fifteen years if Mr. Johnson had three
* The parties have not requested oral argument, and we conclude that oral argument would not materially aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based on the briefs.
Our order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). prior 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).
Mr. Johnson had multiple felony convictions in his past. Two of them
were for distributing cocaine base and possessing cocaine base with intent
to distribute. See Okla. Stat. tit. 63, § 2-401(A)(1). Mr. Johnson argues
that these prior offenses
did not qualify as serious drug offenses and
had been committed on the same occasion.
The district court rejected these arguments and sentenced Mr. Johnson to
fifteen years in prison. We affirm.
I. The prior convictions were for serious drug offenses.
Mr. Johnson first contends that the two prior offenses did not
constitute “serious drug offense[s]” under the Armed Career Criminal Act.
Classification as a “serious drug offense” involves statutory interpretation,
which we review de novo. United States v. Trent, 884 F.3d 985, 991 (10th
Cir. 2018).
The parties agree that
the statute of conviction is divisible and
the modified categorical approach applies.
Under the modified categorical approach, we identify the crimes of
conviction and compare the elements of those crimes and their generic 2 counterparts. United States v. Madkins, 866 F.3d 1136, 1145 (10th Cir.
2017).
The Oklahoma crimes were set out in a statute prohibiting
individuals from transporting illicit drugs with the intent to distribute
them. Okla. Stat. tit. 63, § 2-401(A)(1). The federal definition of a “serious
drug offense” is “an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or distribute, a
controlled substance . . . .” 18 U.S.C. § 924(e)(2)(A)(ii).
Mr. Johnson contends that the federal definition of “serious drug
offense” does not encompass the transportation of drugs. We disagree. It is
true that the federal definition does not include the word “transportation.”
But the federal definition does use the term “possessing,” and “the
transportation of drugs necessarily implies their possession.” United States
v. Svacina, 137 F.3d 1179, 1182 n.1 (10th Cir. 1998); see also United
States v. Karam, 496 F.3d 1157, 1167 (10th Cir. 2007) (“Nor can there be
any dispute that . . . [transporting] drugs intended for sale by the defendant
. . . involve[s] possession with intent to distribute . . . .”).
Mr. Johnson relies on United States v. McKibbon, 878 F.3d 967 (10th
Cir. 2017), and United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017).
In these opinions, we applied the sentencing guidelines’ definition of a
controlled-substance offense, holding that this definition did not cover
offers to sell drugs. McKibbon, 878 F.3d at 972-73; Madkins, 866 F.3d at
3 1145, 1147-48. But the Oklahoma statute does not include offers to sell.
This difference matters: Someone can offer to sell drugs without being
guilty of an attempted sale, 1 but it is impossible to transport drugs without
possessing them. McKibbon and Madkins involved statutes of conviction
broader than their guideline counterparts; here, however, the statute of
conviction is not broader than its counterpart in the Armed Career Criminal
Act. In light of this difference, McKibbon and Madkins lack any bearing on
the present issue.
We therefore conclude that
transportation of drugs with intent to distribute is a crime “involving . . . possessing with intent to manufacture or distribute” and
the Oklahoma crime does not extend beyond the federal definition of a “serious drug offense.”
II. Mr. Johnson’s prior convictions were for distinct offenses.
Mr. Johnson also contends that the two prior offenses were
committed on the same occasion. This contention is based on the Armed
Career Criminal Act, which counts prior convictions only if the underlying
crimes were committed on different occasions. 18 U.S.C. § 924(e)(1).
In reviewing this contention, we engage in de novo review. United
States v. Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012). This review
1 See Madkins, 866 F.3d at 1147 (“[B]ecause a person can offer a controlled substance for sale without having the intent to actually complete the sale, a conviction for an offer to sell can be broader than a conviction for an attempt to sell.”). 4 calls for us to consider how the two offenses unfolded. One afternoon, at
about 4:20 p.m., an undercover investigator met with Mr. Johnson and
asked to buy an ounce of crack cocaine. Mr. Johnson did not have an
ounce, but he did have three grams and sold them to the investigator. Mr.
Johnson also told the investigator how much an ounce would cost and
agreed to call when a full ounce became available. The sale of three grams
led to Mr. Johnson’s conviction for distributing cocaine base.
The next day, at 7:15 p.m., officers found thirteen grams of cocaine
base in Mr. Johnson’s vehicle. Discovery of the drugs led to Mr. Johnson’s
conviction for possessing cocaine base with intent to distribute.
Mr. Johnson argues that these two incidents involved the
“continuation of a single drug deal, negotiated at the same time, between
the same parties.” Appellant’s Opening Br. at 24. The two crimes were
separated by little more than a day and were related in the sense that Mr.
Johnson and the investigator had discussed a future drug purchase during
the initial transaction. Nonetheless, the two offenses were distinct.
Two offenses are “committed on occasions different from one
another” when they are “committed at distinct, different times.” United
States v. Johnson, 130 F.3d 1420, 1431 (10th Cir. 1997) (internal quotation
marks omitted). If the defendant decided to continue with a criminal course
of conduct after “a meaningful opportunity” to stop, the crimes will be
5 considered distinct. United States v. Delossantos, 680 F.3d 1217, 1220
(10th Cir. 2012).
The crimes remain distinct even when the incidents take place in a
short time span. For example, in United States v. Delossantos, we approved
of a Fourth Circuit opinion holding that two sales of crack cocaine were
distinct even though they had involved the same buyer at the same location
within a two-hour time span. See id. (discussing United States v.
Letterlough, 63 F.3d 332, 334, 337 (4th Cir. 1995)). And we have
considered the crimes distinct when a defendant successively burgled three
businesses in the same shopping mall on a single night. United States v.
Tisdale, 921 F.2d 1095, 1098-99 (10th Cir. 1990).
Under these opinions, Mr. Johnson’s two prior offenses were distinct
because
they took place at “distinct, different times” and
Mr. Johnson had “a meaningful opportunity” to stop his criminal course of conduct after selling three grams to the undercover investigator.
Johnson, 130 F.3d at 1431 (internal quotation marks omitted); Delossantos,
680 F.3d at 1220. The crimes remain distinct even though they had been
committed on consecutive days and a future drug sale had been discussed
at the first drug transaction. See United States v. Brown, 706 F. App’x 474,
476 (10th Cir. 2017) (unpublished) (rejecting the argument that
“convictions arising from repeat sales of controlled substances, the 6 subsequent sales of which are the direct result of the first sale, should be
treated as the same offense” (internal quotation marks omitted)).
Therefore, Mr. Johnson’s two prior offenses were “committed on occasions
different from one another” under the Armed Career Criminal Act. 18
U.S.C. § 924(e)(1).
III. Conclusion
We conclude that Mr. Johnson’s two prior drug offenses
were “serious drug offense[s]” and
took place on different occasions.
18 U.S.C. § 924(e). Accordingly, the district court did not err and we
affirm the sentence.
Entered for the Court
Robert E. Bacharach Circuit Judge