Michael Willoughby pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Over Willoughby’s objection, the presentence investigation report (PSR) recommended that Willoughby be designated an “arme'd career criminal” under the Armed Career Criminals Act (ACCA), 18 U.S.C. § 924(e)(1), based, in part, on his two prior Missouri convictions stemming from an incident in which he sold drugs to two individuals nearly simultaneously. Willoughby maintained that these two convictions were for offenses not sufficiently separate and distinct to render them committed “on occasions different from one another” as the *740 ACCA requires. The district court agreed with the PSR’s recommendation, designated Willoughby an armed career criminal, and sentenced him to the ACCA’s mandatory minimum sentence of 15 years’ imprisonment. Willoughby appeals, and, for the reasons that follow, we reverse and remand for resentencing.
I. Background
On June 22, 2010, a federal grand jury in Springfield, Missouri, returned a one-count indictment charging Willoughby with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Initially, Willoughby pleaded not guilty to the indictment, but he subsequently changed his plea to guilty.
The PSR prepared in advance of his sentencing recommended that Willoughby be classified as an armed career criminal, pursuant to the ACCA. If designated an armed career criminal, Willoughby would be subject to a mandatory minimum punishment of 15 years’ imprisonment. Willoughby objected to this finding by the PSR, specifically challenging whether his selling marijuana to two different people during one drug deal constituted two offenses that were committed on different occasions as the ACCA requires.
In their respective briefs, both the government and Willoughby recite the charging information filed in Greene County, Missouri Circuit Court and Officer Robert C. McPhail’s accompanying “Affidavit in Support of Complaint” as accurate sources for the underlying facts. Officer McPhail’s affidavit describes the drug deal, in pertinent part, as follows:
On l-20-99[,] I was contacted by a C/I [ (confidential informant) ] who is registered with the Springfield Police Department Narcotics unit as a confidential informant. The C/I said a subject known аs “Beast” had marijuana and he was willing to sell to him/her. The C/I said he could introduce me to “Beast” and I could by [sic] marijuana from him....
Before contacting the C/I[,] I photocopied $75 of funds issued to me by the police department.... I prepared and wore a hidden body wire for the transaction. Officer Kirk Manlove took the receivеr with a cassette tape in his city[-]issued vehicle and monitored the transaction. Officer Brandon Bridge-forth assisted and went with Officer Manlove.
I contacted the C/I and checked to make sure he/she had no money, illegal drugs[,] or contraband in his/her possession. We rode in my city[-]issued vehicle to 221 N. Broadway. Before entering the house[,] I gave the C/I $25 of the $75 that I photocopied.
The C/I knocked on the door and received permission for us to enter the house. Michael Willoughby was sitting in a chair in the northeast corner of the living room. He was wearing a shoulder holster. The straps that hold the holster on the body wore [sic] green. The holster was camouflage. The holster held what appeared to be a semiautomatic handgun. It was black in color and I saw a magazine in the butt of the handgrip. Willoughby was wearing a tan/off white t-shirt and blue jeans. He was also wearing red suspenders hanging down by his legs. These are commonly referred to as [“]braces[”] by Neonazi/skinhead groups.
Willoughby asked the C/I what was up. The C/I askеd Willoughby if he still did business. Willoughby said yes. The C/I said he wanted to purchase an “eighth” and I wanted to purchase a “quarter.” Willoughby picked up a plastic box from the left side of the chair and walked to a room in the back of the house.... The C/I and I waited in the *741 living room for a few minutes until Willoughby returned.
When Willoughby returned to the living room he had two sandwich bags containing a green leafy substance in his hand. He started to give both to the C/I. I held out my left hand. Willoughby gave one to the C/I then gave one to me. The C/I gave Willoughby the $25 I gave him. I gave Willoughby $50. I smelled the contents of the bag Willoughby gave me. It smelled and looked like marijuana. We immediately left the house. Willoughby wore the shoulder holster with [the] gun during the entire transaction.
After leaving the house the C/I gave me the sandwich bag of green leafy substance. I checked him/her again for any contraband before he/she left my city issued vehicle.
Subsequently, the State of Missouri charged Willoughby in a two-count information, one count for Willoughby’s sale to the confidential informant and one count for Willoughby’s sale to Officer McPhail. A jury convictеd Willoughby on each count. In turn, based on these undisputed facts, the district court designated Willoughby an armed career criminal under the ACCA and sentenced him accordingly to the ACCA’s mandatory minimum sentence of 15 years’ imprisonment.
II. Discussion
On appeal, Willoughby maintains that the district court erred in counting, for ACCA purposes, his sale of marijuana to Officer McPhail and the confidential informant as two drug offenses committed on different occasions. In response, the government argues that the district court properly labeled Willoughby an armed career criminal subject to the ACCA’s mandatory minimum sentence of 15 years’ imprisonment. Specifically, the government contends that “there werе two different amounts of marijuana sold to two separate purchasers, which resulted in Willoughby being charged with two different crimes.” The government asserts that “[t]his Court has repeatedly rejected arguments similar to Willoughby’s, finding them to have ‘no merit, for it is the criminal episodes underlying the convictions ... that must be distinct to trigger the provisions of the ACCA.’ ” (Quoting
United States v. Speakman,
We review de novo the district court’s determination of whether Willoughby’s criminal record qualified him as an Armed Career Criminal.
United States v. Gordon,
Congress passed the ACCA to protect the public from continuing crimes by armed felons. See generally H.R.Rep. No. 98-1073, at 1-3, 1984 U.S.C.C.A.N. 3661 (1984). It provides a minimum sentence of fifteen years if a defendant qualifies as an armed career criminal. 18 U.S.C. § 924(e). This classificаtion applies to a defendant convicted of being a felon in possession of a weapon or ammunition who 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.” § 924(e)(1).
United States v. Deroo,
Here, the record belies the government’s argument that Willoughby’s sale to the officer and, seconds later, to the confidential informant, constitute “separate and
*742
distinct criminal episodes” but instead confirms that the sale was, in actuality, one “continuous course of conduct.”
Id.
As an initial matter, we recognize “that the status of the law in the [Eighth] [C]ircuit is that a single charging document containing separate underlying counts may serve as the basis for separate convictions when considering whether the offenses constitute serious drug оffenses for purposes of armed career offender consideration.”
United States v. Keith,
However, we have never held two convictions to be sufficiently separate and distinct to serve as predicate ACCA convictions where, as here, those convictions were for drug offenses that the defendant committed, in essence, simultaneously. Indeed, in
Van,
perhaps our most factually similar case to Willoughby’s, we declined to consider whether two drug sales consummated thirty minutes apart from each other “should be counted as one or two prediсate offenses,” opting instead to affirm the district court’s ACCA enhancement by relying on the defendant’s three remaining convictions that were clearly separate and distinct from each other.
Our court has considered at least three factors as important considerations in deciding whether offenses are sufficiently separate and distinct to serve as individual predicate convictions for ACCA en
*743
hancement: (1) the time lapse between offenses, (2) the physical distance between their occurrence, and (3) their lack of overall substantive continuity, a factor that is often demonstrated in the violent-felony context by different victims or different aggressions. For instance, in
United States v. Daniels,
we concluded that the prior burglaries “occurred on different occasions,” as required by the ACCA, based on the “record showing] that Daniels’ priоr burglaries spanned a one-year period, occurred on different dates, related to different victims, and were committed at different locations.”
We conclude that the district court erred in concluding thаt Willoughby consummated two separate drug deals for ACCA purposes. With respect to the time lapse between the drug deals, this court has stated that “[sjection 924(e) does not require separate prosecutions;
it is sufficient that the offenses occurred at different times.” Rodriguez v. United States,
[t]he statutory provision at issue has its genesis in a decision of this court. In United States v. Petty,798 F.2d 1157 (8th Cir.1986), vacated,481 U.S. 1034 ,107 S.Ct. 1968 ,95 L.Ed.2d 810 (1987), this court held that a defendant was subject to an enhanced sentence under 18 U.S.C. § 1202(a)(1) (Supp.1984), based on “three previous convictions ... for robbery or burglary,” when he was “convicted in a single indictment of six counts of robbery stemming from an indictment during which he robbеd six different people in a restaurant simultaneously.”798 F.2d at 1159 . When Petty petitioned for a writ of certiorari, the Solicitor General confessed error, noting that the “legislative history strongly supports the conclusion that the statute was intended to reach multiple criminal episodes that were distinct in time, not multiple felony convictions arising out of a single criminal episode.” See United States v. Petty,828 F.2d 2 , 3 (8th Cir.1987). The Supreme Court remanded the case to this court for reconsideration in light of the Solicitor General’s position, Petty,481 U.S. at 1034-35, 107 *744 S.Ct. 1968, and this court remanded the case for resentencing.828 F.2d at 3 .
The following year, Congress amended the statute to add the requirement that a defendant must have sustained three convictiоns “on occasions different from one another” to qualify as an armed career criminal.... Observing that “occasion” has been defined as “a particular occurrence” or “a particular time at which something takes place,” the Fourth Circuit interpreted the amendment to mean that “Congress intended to include within the scope of the ACCA only those predicate offenses that can be isolated with a beginning and end — ones that constitute an occurrence unto themselves.” United States v. Letterlough,63 F.3d 332 , 335 (4th Cir.1995) (quoting Webster’s Third New International Dictionary Unabridged 1560 (1986)).
Davidson I,
That said, other of our precedents recognize the difficulties inherent in gauging — with the traditional metrics оf minutes and hours — the amount of time lapse sufficient to render the offenses committed “on occasions different from one another.” Accordingly, we have also stated that “[c]rimes occurring even minutes apart can qualify ... if they have different victims,” thereby reflecting a lack of substantive continuity, “and are committed in different locations,”
Deroo,
In Willoughby’s case, none of the factors that our precedents have identified countenance the conclusion that Willoughby’s drug deals to Officer McPhail and the confidential informant were separate and distinct drug offenses perpetrated “on occasions different from one another.” 18 U.S.C. § 924(e)(1). First, the two sales occurred within seconds, and there was no “discernible pause in activity during which [Willoughby] had an opportunity to cease and desist from further criminal activity.”
Davidson I,
III. Conclusion
Based on the foregoing, we reverse the district court’s sentence and remand fоr resentencing consistent with this opinion.
Notes
. Although we partially vacated the
Davidson I
opinion in light of the Supreme Court's decision in
Begay v. United. States,
[f]or the reasons set forth in our prior opinion, Davidson's conviction is affirmed, and we uphold the district court’s decision to classify Davidson as an armed career criminal pursuant to 18 U.S.C. § 924(e). The prior opinion is vacated only to the extent that it affirmed the district court's judgment in its entirety; the opinion remains in place with respect to all issues raised and decided therein.
United States v. Davidson (Davidson II),