Submitted May 11, 2015.
Appeal from United States District Court for the Western District of Missouri - Kansas City.
For United States of America, Plaintiff - Appellee: Christina Y. Tabor, Assistant U.S. Attorney, U.S. Attorney's Office, Kansas City, MO.
Ervin D. Abbott, Defendant - Appellant, Pro se, Pollock, LA.
For Ervin D. Abbott, Defendant - Appellant: Robert Kuchar, Federal Public Defender's Office, Kansas City, MO.
Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
Ervin Abbott appeals the district court's application of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to his sentence. Abbott argues tat two previous convictions for drug offenses
should not be counted as two predicate ACCA crimes. We affirm.
On May 15, 2013, law enforcement officers stopped Abbott's vehicle because its license plate had three active arrest warrants associated with it. Officers arrested Abbott after they confirmed that he had an active arrest warrant. After his arrest, Abbott orally consented to the search of his vehicle. Officers recovered a pistol underneath the driver's seat. Thereafter, a canine officer located 11.5 grams of marijuana hidden in the center console of the vehicle. Later that day, Abbott also consented to a custodial interview during which he admitted that he had recently bought the pistol for personal protection and placed it under the driver's seat of the car.
The government charged Abbott with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Abbott pleaded guilty to the charge without a written plea agreement.
At Abbott's sentencing hearing, the district court found that Abbott had the necessary three predicate " serious drug offense[s]" and applied the ACCA. See 18 U.S.C. § 924(e)(2)(A). Abbott objected, arguing that the court should count two of his prior drug offenses as one offense for ACCA purposes because they were a part of the same criminal episode. Specifically, Abbott pleaded guilty to two counts of selling a controlled substance in 2004. On June 8, 2004, Abbott sold .4 grams of cocaine base to an undercover detective for $20; the next day on June 9, Abbott sold .28 grams of cocaine base to the same undercover detective, again for $20. Nevertheless, the district court ruled that " [i]t makes no difference that they're one day apart. They're different sales on different days. The Court is going to rule that one sale is on June the 8th, 2004, and the next sale is on June 9th, 2004. Now, those are two priors." The district court relied upon our precedent in concluding that " for purposes of applying the [ACCA], . . . they're separate sales and we're going to count them." As a result, the court found ...