United States v. Jermaine Sims , 683 F.3d 815 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3550
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JERMAINE S IMS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CR 619—Charles R. Norgle, Judge.
A RGUED A PRIL 19, 2012—D ECIDED JUNE 25, 2012
Before E ASTERBROOK, Chief Judge, and F LAUM and
W OOD , Circuit Judges.
W OOD , Circuit Judge. Jermaine Sims pleaded guilty to
possessing a firearm as a convicted felon, in violation of
18 U.S.C. § 922(g). The district court sentenced Sims to
180 months’ imprisonment after it determined that
three of Sims’s previous convictions triggered the Armed
Career Criminal Act’s (ACCA) 15-year mandatory mini-
mum.
2 No. 11-3550
Sims appeals only his sentence. He argues that the
ACCA sentencing enhancement should not apply to him
because two of his three prior convictions—one for
selling cocaine and the other for possessing cocaine with
intent to deliver—were not committed “on occasions
different from one another.” 18 U.S.C. § 924(e)(1). Although
we can imagine some circumstances in which sales and
possession offenses, even if separated by some time,
might appropriately be found to have occurred on the
same “occasion,” that is not the case here. Sims’s two
offenses were separated by a week. We thus find no error
in the district court’s determination that the two were
“committed on occasions different from one another,” 18
U.S.C. § 924(e)(1). That means that the necessary three
predicate offenses for ACCA purposes are present, and
that Sims’s sentence must be affirmed.
I
Under ACCA, a person convicted of being a felon in
possession of a firearm who has “three previous con-
victions . . . for a violent felony or a serious drug offense,
or both, committed on occasions different from one an-
other” is subject to a mandatory prison term of “not less
than fifteen years.” 18 U.S.C. § 924(e)(1). The district
court’s application of the statute in this case turns on its
determination that two of Sims’s prior drug convic-
tions were “committed on occasions different from one
another.” (Sims concedes that his third prior conviction,
for aggravated discharge of a weapon in 1997, was prop-
erly counted.)
No. 11-3550 3
The two drug convictions in question occurred more
than 12 years ago. On January 11, 2000, Sims sold four
grams of cocaine to an undercover Illinois police offi-
cer. The officer did not arrest Sims right away, as he
might have done. Instead, he obtained a search warrant
for Sims’s residence. A week later, on January 18, the
police executed the warrant. At that time, they arrested
Sims with four rocks of crack cocaine on his person.
Sims was charged with a variety of drug offenses and
ultimately pleaded guilty in Illinois state court to
unlawful delivery of less than 15 grams of cocaine (the
January 11 sale) and unlawful possession of less than
15 grams of cocaine with intent to deliver (the January 18
possession).
The only issue Sims raises on appeal is whether those
two offenses were correctly found to be “committed on
occasions different from one another.” If so, then his
sentence stands; if not, he is entitled to resentencing.
The key question is whether the offenses were the
result of “separate and distinct criminal episode[s].”
United States v. Hudspeth, 42 F.3d 1015, 1019 (7th Cir.
1994) (en banc). In Hudspeth we held that separate
and distinct criminal episodes can occur even when
one crime comes “hard on the heels of another.” Id. at
1020. Hudspeth had committed three burglaries in
rapid succession against adjoining stores in the same
strip mall, but we held that each burglary counted as
a distinct criminal episode. Hudspeth’s single crime
spree was thus sufficient to trigger the ACCA enhance-
ment. What matters is “not whether one crime
overlaps another but whether the crimes reflect distinct
4 No. 11-3550
aggressions.” Id. at 1020 (quoting United States v. Godinez,
998 F.2d 471, 473 (7th Cir. 1993)) (emphasis by Hudspeth).
Sims relies on this language to argue that his posses-
sion offense is not separate and distinct from his sales
offense because possession itself is not a distinct aggres-
sion. Setting aside whatever aggression may have ac-
companied the initial act of acquiring drugs, continued
possession of drugs, he argues, is a passive offense.
Sims speculates that had the police arrested him at the
moment of the initial drug sale and found the cocaine
on his person, ACCA would not apply. The result
should be no different, he concludes, simply because
the police waited a week to arrest him.
The problem with Sims’s argument is that it operates
at too general a level. It is true that possession is
typically a passive offense. Cf. United States v. Archer,
531 F.3d 1347, 1351 (11th Cir. 2008) (“The act of posses-
sion does not, without more, . . . involve any aggressive
or violent behavior.”). Had Sims been arrested at the
moment of the drug sale and been convicted of possession
with intent to sell as well as the sale, the two convictions
could not be treated as separate offenses for ACCA pur-
poses. See Hudspeth, 42 F.3d at 1021 n.10 (explaining that
“a single drug sale” that results in multiple charges,
including sale and possession with intent to sell, should
not trigger the ACCA’s sentencing enhancement).
But that is not what happened. Sims sold drugs on
January 11. A full week later, he was caught in possession
of a quantity of crack consistent with an intent to sell.
Courts have reasoned that two drug sales, even those
No. 11-3550 5
that occur sequentially, can be distinct offenses under
ACCA. See, e.g., United States v. Cardenas, 217 F.3d 491,
492 (7th Cir. 2000); United States v. Van, 543 F.3d
963, 966 (8th Cir. 2008); United States v. Johnson, 130
F.3d 1420, 1430-31 (10th Cir. 1997); United States v.
Letterlough, 63 F.3d 332 (4th Cir. 1995); United States
v. Maxey, 989 F.2d 303, 306 (9th Cir. 1993).
Sims argues that those cases do not control because
he was convicted of a sale and a possession offense,
not two sales. Descriptively, he is correct. But in order
for us to conclude that his two crimes must be collapsed
into one “occasion,” we would at a minimum have to
be satisfied that Sims’s possession offense was based
on the same drug stash from which he drew the
product that he sold. Although it is possible that the
drugs found on January 18 were already in his
possession as early as January 11, it is at least equally
likely that they were not. For all we know, Sims sold the
last of his January 11 drug supply to the officer that day
and then acquired additional cocaine before his arrest
on January 18. Those two offenses would be separate
and distinct. Once the government has established by a
preponderance of the evidence that Sims has three
prior felonies under ACCA, the burden shifts to the
defendant to “prove by a preponderance of the evidence
that a conviction cannot be used under § 924(e)(1).”
United States v. Vitrano, 405 F.3d 506, 509 (7th Cir. 2005).
On this record, the district court reasonably concluded
that Sims failed to meet that burden. It was therefore
appropriate for the court to treat the two as separate
offenses.
6 No. 11-3550
II
Sims urges that the application of ACCA under the
circumstances of his case is arbitrary, and we acknowl-
edge that he is receiving a hefty sentencing enhance-
ment because of these two relatively minor drug offenses.
In his view, his sentence is driven not by his own
behavior, but by the choice of the police not to arrest
him at the moment of the initial sale that triggered
ACCA’s 15-year minimum sentence for him. Naturally,
there is another way to look at things: it was Sims’s
choice to engage in drug trafficking to begin with,
coupled with his choice to plead guilty to the posses-
sion offense on January 18, that has landed him in this
position, even if he did not foresee just how harsh the
fallout was likely to be. Moreover, it seems unlikely to
us that the police will strategically arrest drug offenders
a week or more after their initial offenses, hoping that
12 years hence the same people will face federal gun
charges and wind up with a long federal sentence.
We decline the invitations of both parties to estab-
lish some kind of hard and fast rule about how much
time must pass between a sales offense and a possession
offense before the two are considered to be committed
on different occasions. A week, as we have here, is likely
to be enough, but we do not rule out the possibility that
a defendant in a future case could point to evidence
indicating that only one episode is unfolding. We also
decline to hold, as the government has requested, that
the passage of a short period of time will always justify
a finding of two “occasions.” In the government’s view,
No. 11-3550 7
if the police had waited just an hour to arrest Sims,
rather than a week, the result should be the same
because Sims would have had an “opportunity . . . to
withdraw from his criminal activity,” Hudspeth, 42
F.3d at 1021, by throwing away whatever drugs he pos-
sessed. But “opportunity to withdraw,” though im-
portant, is not the only consideration. It is merely
one factor that we consider, and it will often provide
strong support for finding the separate occasions that
are necessary for enhanced penalties under ACCA. As
we commented in Hudspeth, “[a] defendant who has
the opportunity to cease and desist or withdraw from
his criminal activity at any time, but who chooses to
commit additional crimes, deserves harsher punish-
ment than the criminal who commits multiple crimes
simultaneously.” Id.This rationale may have its limits in the case of a
drug dealer who sells drugs at time A but is not
arrested until time B, just an hour or two later. If the
police have been standing around questioning people,
securing the scene, or otherwise handling the situation
as a single event, then it is likely to be a single occasion
for ACCA purposes. Application of ACCA should turn
on choices made by the defendant to commit additional
crimes, not choices made by the police about timing
of arrests. Were we confronted here with a case like
United States v. Blackwood, 913 F.2d 139, 145 (4th Cir. 1990),
on which Sims relies, we might reach the same result
as that court did. In Blackwood, a defendant had two
past convictions, one for possession of drugs in a truck
and the other for possession two hours later of drugs in
8 No. 11-3550
a hotel room. The Fourth Circuit concluded that the
two convictions were “no more than two components
of a single act of criminality” and so should not be
counted separately for sentencing purposes under a
statute similar to the ACCA. Id. But here a week, not
two hours, separated the two offenses. As we have
already explained, Sims has not demonstrated why
that lengthy period is not enough to support the
finding of two separate occasions.
* * *
We A FFIRM the judgment of the district court.
6-25-12