Merwyn Levering v. United States
890 F.3d 738
8th Cir.2018Background
- Merwyn Levering was convicted in 2004 of being a felon in possession of a firearm (18 U.S.C. § 922(g)) and possession of a stolen firearm (18 U.S.C. § 922(j)).
- The district court applied the ACCA enhancement (18 U.S.C. § 924(e)) based on multiple prior violent-felony convictions and sentenced Levering to lengthy concurrent terms; sentence was later vacated under 28 U.S.C. § 2255 after Johnson v. United States.
- At resentencing the court excluded a 2000 Nebraska escape conviction (no longer a violent felony post-Johnson) but relied on three other prior convictions: a 1989 Nebraska first-degree assault and two 1994 Iowa assault convictions arising from the same high-speed flight across three counties.
- Key factual dispute: whether the two Iowa assault convictions (Dallas County and Adair County) were "committed on occasions different from one another" under ACCA, or instead part of a single continuous episode of flight from police.
- The district court counted both Iowa convictions as separate ACCA predicates because they occurred at different times, places, and involved different victims; sentenced Levering to 240 months (Count I) and 120 months (Count II) after a modest downward variance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the two Iowa assault convictions were "occasions different from one another" under ACCA | Levering: the assaults were part of a single continuous course of conduct (flight), so they constitute one occasion | Government: assaults occurred at different times, locations, and against different victims and thus are separate occasions | Court: Affirmed they were separate occasions and valid ACCA predicates |
| Whether sentencing court abused § 3553(a) discretion in imposing sentence | Levering: court gave insufficient weight to mitigating factors (age, family support) and should have varied more downward | Government: district court reasonably weighed factors and gave a downward variance already | Court: No abuse of discretion; sentence substantively reasonable |
| Whether sentencing court may consider materials beyond Shepard-approved records on occasions question | Levering: (implicit) challenge to records consulted | Government: relied on charging documents and judgments | Court: Took conservative approach and relied only on Shepard-type records; outcome unaffected |
| Whether same-motive (evading arrest) precludes finding separate occasions | Levering: common motive (evade arrest) means continuous conduct | Government: motive not dispositive; time/place/victims are controlling | Court: Motive not necessary; time, place, victims sufficient to find separate occasions |
Key Cases Cited
- United States v. Petty, 798 F.2d 1157 (8th Cir. 1986) (discussed origins of "occasions different" requirement and Petty remand)
- United States v. Hamell, 3 F.3d 1187 (8th Cir. 1993) (assaults at different times/places with different motivations are separate occasions)
- United States v. Deroo, 304 F.3d 824 (8th Cir. 2002) (burglaries of separate cabins on one night are distinct occasions)
- United States v. Gray, 85 F.3d 380 (8th Cir. 1996) (closely timed burglaries still separate occasions)
- United States v. Willoughby, 653 F.3d 738 (8th Cir. 2011) (nearly simultaneous drug sales counted as single occasion)
- United States v. Davidson, 527 F.3d 703 (8th Cir. 2008) (surveyed ACCA "occasions" jurisprudence)
- United States v. Humphrey, 759 F.3d 909 (8th Cir. 2014) (offenses 15 minutes and three blocks apart were separate predicates)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause)
- Shepard v. United States, 544 U.S. 13 (2005) (limits kinds of sentencing records courts may consult)