United States v. William McCoy ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2134
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
William McCoy, *
* [UNPUBLISHED]
Defendant - Appellant. *
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Submitted: April 9, 2007
Filed: April 17, 2007
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Before MURPHY, BRIGHT, and BENTON, Circuit Judges.
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PER CURIAM.
William McCoy pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Finding that McCoy qualified for
the sentence enhancement provided in the Armed Career Criminal Act (ACCA), the
district court1 sentenced him to 188 months in prison. See 18 U.S. C. § 924(e)(1)
(defendant who violates § 922(g)(1) and has 3 prior convictions for violent felonies
is subject to 15-year minimum sentence). On appeal, McCoy challenges the sentence
enhancement under the ACCA, arguing that the court erred in finding that his two
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
tampering convictions in Missouri were separate criminal episodes and violent
felonies.
We review a district court’s factual interpretations for clear error and its legal
conclusions de novo. See United States v. Turner, 431 F.3d 332, 337 (8th Cir. 2005),
cert. denied, 126 S. Ct. 2345 (2006). “To qualify as predicate offenses under the
[ACCA], each conviction must be a separate and distinct criminal episode, rather than
part of a continuous course of conduct.” United States v. Deroo, 304 F.3d 824, 828
(8th Cir. 2002). Although McCoy’s tampering convictions involved the same victim
(Springfield Auto Auction), we conclude that the underlying criminal activity--cutting
a hole in a parking lot fence, stealing a car, and abandoning it, then returning the next
day through the same hole in the fence and stealing a truck--amounted to two discrete
criminal episodes. Cf. United States v. Washington, 898 F.2d 439, 442 (5th Cir.
1990) (two robberies committed against same convenience-store clerk within hours
were separate criminal episodes, and not crime spree). We further conclude that
McCoy’s convictions for tampering constitute violent felonies under section 924(e).
See United States v. Adams, 442 F.3d 645, 647 (8th Cir. 2006) (under controlling
precedent, Missouri conviction for tampering with motor vehicle by operation
qualifies as violent felony within meaning of § 924(e)), petition for cert. filed, (U.S.
Sept. 13, 2006 ) (No. 06-6541); United States v. Johnson, 471 F.3d 990, 999 (8th Cir.
2005).
Accordingly, we affirm.
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