United States v. Doshier

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 20 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-6041
DAVID DEWAYNE DOSHIER, (D.C. No. 03-CR-175-R)
(W.D. Oklahoma)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before KELLY, BRISCOE, and TYMKOVICH, Circuit Judges.
Defendant David Dewayne Doshier appeals the sentence imposed after he pled
guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
As a result of his prior criminal record, Doshier was sentenced under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924, and received the mandatory minimum sentence
of 180 months. On appeal, Doshier contends the ACCA should not apply to him because
two of the three predicate felonies arose from a single criminal episode. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
I.
On July 23, 2003, Doshier was arrested and later pled guilty to being a felon in
possession of a firearm. The government filed a notice of intent to seek enhanced
penalties under the ACCA based on four of Doshier’s prior convictions:
1. Case No. CF-88-1666. Police arrested Doshier after methamphetamine
was found in his car during a traffic stop on March 19, 1988. He received the
methamphetamine from a dealer on March 16, 1988. Doshier pled guilty on
September 13, 1988, to possession of a controlled substance with intent to
distribute, a felony.
2. Case No. CF-88-2022, count 1. From June 1986 until June 1988,
Doshier was involved in a drug conspiracy. He pled guilty on January 20, 1989, to
conspiracy to traffic a controlled dangerous substance, a felony.
3. Case No. CF-88-2022, count 2. Other members of the conspiracy
charged in count 1 sold drugs on March 29, 1988, and Doshier was charged as a
co-conspirator. He pled guilty on January 20, 1989, to trafficking of a controlled
dangerous substance, a felony.
4. Case No. CF-94-1222. On September 19, 1994, Doshier was convicted
of distribution of a controlled dangerous substance, a felony.
At the sentencing hearing for his 2003 firearm conviction, the district court
overruled his objections to the ACCA penalty enhancement and sentenced Doshier as an
armed career criminal, relying upon the convictions for possession with intent to
distribute (CF-88-1666), conspiracy to traffic (CF-88-2022, Count 1), and distribution
(CF-94-1222) as the three predicate felonies. The district court did not determine whether
the trafficking conviction (CF-88-2022, Count 2) could be considered a fourth conviction,
although the government contended it was. The parties agreed that the 1994 distribution
conviction (CF-94-1222) was a predicate felony for purposes of the ACCA.
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II.
A sentence enhancement imposed under the ACCA is reviewed de novo. United
States v. Johnson, 130 F.3d 1420, 1430 (10th Cir. 1997). The government bears the
burden of proving by a preponderance of the evidence that the sentence enhancement is
appropriate. Id.The ACCA authorizes a mandatory minimum sentence of fifteen years’
imprisonment for a defendant convicted of being a felon in possession of a firearm if the
defendant “has three previous convictions by any court . . . 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). This court has interpreted the phrase “committed on occasions
different from one another” to mean the ACCA “was intended to reach multiple criminal
episodes distinct in time.” United States v. Tisdale, 921 F.2d 1095, 1098-99 (10th Cir.
1990). In Johnson, we counted drug convictions arising out of drug sales occurring on
three different dates as three separate convictions and concluded the drug offenses were
not a single criminal episode for purposes of the ACCA. Johnson, 130 F.3d at 1430.
Doshier argues his convictions for conspiracy (CF-88-2022, Count 1) and
possession with intent to distribute (CF-88-1666) were the result of a single criminal
episode and therefore should be counted as a single conviction. Specifically, he argues
his only involvement in the conspiracy was his receipt of methamphetamine on March 16,
1988, which, in turn, led to his arrest on March 19, 1988, for possession with intent to
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distribute. On direct examination at his sentencing hearing, Doshier testified that his
girlfriend, who was charged as a co-conspirator, was a drug dealer and that he had helped
her by driving her to pick up drugs. In response to the court’s question about the period
of time Doshier drove his girlfriend to pick up drugs, Doshier replied he had done it a
couple of times before his arrest on March 19, 1988. Additionally, the conspiracy to
which Doshier pled spanned a two-year period. A guilty plea is an admission by the
defendant that he committed the crimes charged in the indictment. See North Carolina v.
Alford, 400 U.S. 25, 32 (1970). Doshier’s plea, along with his description of the activity
underlying his plea, indicate the conspiracy conviction arose from activity distinct in time
from either his receipt of methamphetamine on March 16, 1988, or his possession with
intent to distribute on March 19, 1988.
Even if we assume, arguendo, that Doshier’s argument concerning his conspiracy
conviction has merit, he has three other predicate felonies which would satisfy the ACCA
requirements. The parties agreed that Doshier’s 1994 distribution conviction (CF-94-
1222) was a predicate felony. His trafficking conviction (CF-88-2022) arose from a sale
of drugs on March 29, 1988, and was clearly distinct in time from his possession with
intent to distribute conviction (CF-88-1666) that arose from activity on March 19, 1988.
In Johnson, we rejected the defendant’s argument that three prior convictions for the sale
of narcotics on March 23, March 26, and August 26, 1993, were all part of a similar plan
or scheme and should be considered a single criminal episode. Here, the criminal activity
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at issue was separated by even a greater span of time.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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