United States v. Ervin Abbott
2015 U.S. App. LEXIS 12620
| 8th Cir. | 2015Background
- Abbott was stopped May 15, 2013, arrested on outstanding warrants, and a search of his vehicle revealed a pistol and 11.5 grams of marijuana; he admitted buying the gun for protection.
- Charged under 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm; pleaded guilty without a written plea agreement.
- At sentencing the district court applied the Armed Career Criminal Act (ACCA), finding Abbott had three qualifying prior "serious drug offenses."
- Abbott’s prior record included two convictions for selling cocaine base on June 8 and June 9, 2004 (sales to the same undercover officer for the same price) plus another uncontested drug conviction.
- Abbott argued the two June 2004 convictions should count as a single predicate because they were part of the same criminal episode; the district court treated them as two separate predicates and imposed the 180‑month ACCA mandatory minimum.
- The Eighth Circuit affirmed, concluding the separate‑day sales were temporally distinct enough to be counted as separate ACCA predicates.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two drug convictions on consecutive days can be counted as two ACCA predicates | Abbott: June 8 and 9 sales were the same criminal episode and should count as one predicate | Government/District Court: separate sales on different days are separate predicates; ACCA requires offenses committed on "occasions different from one another" | Affirmed: convictions on different days are sufficiently temporally separate to be counted as two ACCA predicates |
| Whether factors other than time (location, continuity) require treating the convictions as one | Abbott: sales were to same buyer for same amount and possibly same location, showing substantive continuity | Government: temporal separation alone is sufficient; other factors are secondary | Rejected Abbott’s continuity argument; temporal separation controls and is sufficient |
| Whether offenses must be separately prosecuted to count as multiple predicates | Abbott: implied challenge that same case convictions shouldn’t be multiple | Government: ACCA does not require separate prosecutions, only separate times | Held: separate prosecutions not required; different times suffice |
| Applicability of Willoughby precedent (simultaneity doctrine) | Abbott: Willoughby supports treating proximate sales as one episode | Government: Willoughby concerned near-simultaneous sales and is distinguishable | Held: Willoughby is distinguishable; non-simultaneous day‑apart sales are separate |
Key Cases Cited
- United States v. Humphrey, 759 F.3d 909 (8th Cir. 2014) (standards for reviewing whether prior conviction is an ACCA predicate)
- United States v. Van, 543 F.3d 963 (8th Cir. 2008) (separate transactions on separate days count as separate predicates)
- United States v. Willoughby, 653 F.3d 738 (8th Cir. 2011) (near‑simultaneous offenses may be treated as a single episode)
- United States v. Ross, 569 F.3d 821 (8th Cir. 2009) (separate‑day sales are separate ACCA predicates)
- United States v. Gray, 152 F.3d 816 (8th Cir. 1998) (sales one day apart in same motel room counted separately for sentencing)
- United States v. Petty, 828 F.2d 2 (8th Cir. 1987) (simultaneous robberies of multiple victims treated as a single offense for ACCA purposes)
- Rodriguez v. United States, 17 F.3d 225 (8th Cir. 1994) (ACCA does not require separate prosecutions; temporal separation suffices)